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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 8:36 AM

Supreme Court backs Legislature's '05 tax plan

Posted by David Postman

The state Supreme Court today upheld the Legislature's interpretation of the Initiative 601 spending limit, overturning a Superior Court judge's ruling that lawmakers' manipulation of the limit "trumps the intent and spirit of 601."

Snohomish County Superior Court Judge James Allendoerfer ruled last year that the Legislature's 2005 tax plan had artificially manipulated the spending limit in order to spend more than legally allowed. And he said that was done to avoid having to ask voters to approve the tax increases.

The decision is not on line yet. (It is now; see below) But the majority opinion was written by Justice Mary Fairhurst and signed by Bobbe Bridge, Charles Johnson, Barbara Madsen and Susan Owens. Chief Justice Gerry Alexander, Justice Richard Sanders, Justice Jim Johnson and Justice Tom Chambers all wrote separate concurrences.

The lawsuit was filed in 2005 by the Evergreen Freedom Foundation, the National Federation of Independent Business, the Building Industry Association of Washington, the Washington Farm Bureau and the Washington State Grange.

Fairhurst wrote that a legislative fix in 2006 cured any problems with the 2005 tax package. She wrote:

It is a fundamental principle of our system of government that the Legislature has plenary power to enact laws except as limited by our state and federal constitutions. Each duly elected Legislature is fully vested with this plenary power.

The opinions are posted now. Here's the majority and concurrences by Alexander, Sanders, Chambers, and Jim Johnson.

The majority leans heavily on the argument that lawmakers cannot be bound by laws passed by previous Legislatures, or by laws passed by voters.

No legislature can enact a statute that prevents a future legislature from exercising its law-making power. That which a prior legislature has enacted, the current legislature can amend or repeal. Like all previous legislatures, it is limited only by the constitutions. To reason otherwise would elevate enactments of prior legislatures to constitutional status and reduce the current legislature to a second-class representative of the people.

What is true of statutes enacted by the legislature is likewise true of initiatives, for when the people pass an initiative, they exercise legislative power that is coextensive with that of the legislature. A law passed by initiative is no less a law than one enacted by the legislature. Nor is it more. A previously passed initiative can no more bind a current legislature than a previously enacted statute.

There were public records issues at stake, too, in the case. But the court did not rule on that. The plaintiffs argued that e-mails from legislative staff should be public records. The state argued that they should be protected by legislative privilege.

Sanders uses his concurrence to take aim at the majority's deference to the Legislature.

I understand that the majority's view to be the state legislature is virtually unrestrained except insofar as the legislative action countervenes some express prohibition in the state constitution. Although this claim has been repeated by rote in several of our decisions, I am unable to find a single one which explains its rationale, much less critically examines its premise. I challenge the majority to either do so here or dispense with this careless rhetoric.

The assertion seems to be based on an erroneous presumption that state governments have inherent powers — a presumption that contradicts the basic premise of all American governance that all power resides in the people except insofar as it has been delegated to the government.

Sanders argues that the majority ignores the very roots of our form of government. He concludes with this:

I fear for our Republic each step the majority takes toward achieving its counterrevolutionary premise. One cries outrage when the majority purports to recognize "a fundamental principal of our system of government," which is in reality absolutely antithetical to those true principles of our Republic, which are indeed fundamental.

Aside from that, I concur in the remainder of the majority's opinion.

Reaction: Jason Mercier, a spokesman for the Washington Policy Center, a conservative think tank, called the ruling a "punt." He was working for the Evergreen Freedom Foundation when the suit was filed.

"I'm thankful that 601 still exists and by default, 960 still exists. But it's disappointing to learn that the Legislature cannot be held accountable for breaking the law. All they have to do is — a year or two years later— pass a new law that says 'Hey what we did that was previously wrong is now OK.'"

Evergreen Freedom Foundation President Bob Williams says in a statement:

"This is nuts. ... The trial court ruled that the legislature had 'gamed' the FY 2006 spending limit and it should be reduced by $250 million. That means the tax increases were over the limit.


"So our rights are reduced to mere expectations now. ... It was our right to vote on the 2005 tax increases. That was the law. The legislature broke that law, but the Court is giving it a pass."

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