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November 8, 2007

Supreme Court throws out Eyman property tax limit

Posted by David Postman at 8:28 AM

The state Supreme Court this morning ruled that the voter-approved property tax limit in Initiative 747 is unconstitutional. The court ruled 5-4 to throw out the Tim Eyman-sponsored state and local property tax limit. The majority said:

I-747's challengers argue that the initiative failed to accurately set forth the law that it sought to amend in violation of article II, section 37 because the text of the initiative claimed to reduce the general property tax levy limit from two percent to one percent, but in reality it reduced the limit from six percent to one percent. We agree.

The initiative was passed overwhelmingly in 2001. It limited increases state and local property tax collections to 1 percent a year, unless voters approved a higher increase.

King County Superior Court Judge Mary Roberts ruled it unconstitutional in 2006, saying voters were deceived, or at least confused. In 2000, voters approved another Eyman initiative, I-722, which capped increases at 2 percent. Roberts said that voters believed they were changing the limit only from 2 percent increases a year to 1 percent.

But by the time I-747 was on the ballot, the Supreme Court had thrown out I-722 as unconstitutional. As Ralph Thomas wrote in May when the Supreme Court heard arguments on the I-747 case:

Roberts said voters were not aware that they were actually considering a much more dramatic limit.

The coalition that sued to overturn I-747, including Whitman County and groups that advocate for the poor, argued in a brief to the Supreme Court that voters had been "hoodwinked into passing I-747."

"Every citizen has the right to accurate information on the day they vote," attorney Knoll Lowney told the court Tuesday. "Voters are not second-class lawmakers."

The state constitution requires that initiatives which amend existing laws include the full text of what's being amended. Because I-747 was drafted while I-722 was still in effect, it included the language of the 2 percent limit. But by election day 2001, I-722 had been tossed out by the court and that law had reverted to the pre-2000 version.

The majority opinion, written by Justice Bobbe Bridge, says

Here, at the time of the popular vote, the text of I-747 did not accurately set forth the law that the initiative sought to amend. Voters' Pamphlet at 15. The text of I-747 led voters to believe that I-747 would generally reduce the property tax increase limit from two percent to one percent. Id. In fact, the initiative generally reduced the property tax increase limit from six percent to one percent.

Bridge said that's true even though voters could have gotten the full story from reading the voter's pamphlet.

While complete review of the attorney general's explanatory statement in the Voters' Pamphlet might have explained the relationship between pre-I-722 law and the changes proposed by I-747, article II, section 37 does not simply require that notice of an amendatory initiative's impact on existing law be somehow available to voters. "[T]he act revised or the section amended" must be "set forth at full length." Wash. Const. art. II, ยง 37. Nothing in the plain language of article II, section 37 or in our case law interpreting it suggests that information in the Voters' Pamphlet can cure the type of textual violation of article II, section 37 that occurred here, where the initiative's inaccuracy strikes at the substance of the amendment's impact. ...


At best, review of the entire Voters' Pamphlet reveals ambiguity as to the effect that I-747 would have on existing law. ... We, therefore, conclude that the Voters' Pamphlet does not cure the defect in the text of I-747.

The ruling came in a 5-4 decision. The majority was signed by Barbara Madsen, Susan Owens, and two pro-tem judges, Stephen Brown and Teresa Kulik. Justices Jim Johnson and Mary Fairhurst did not participate.

The dissent was written by Justice Charles Johnson and signed by Chief Justice Gerry Alexander and justices Richard Sanders and Tom Chambers. Johnson says the majority doesn't give voters enough credit.

No reasonable argument can be sustained that voters were in any way misled or confused by the effect of I-747, which expressly and was specifically aimed at lowering the tax growth to one percent. The majority seems to suggest that the voters are unable to think or read for themselves, when in fact our democratic process is based on the assumption that voters do in fact read and understand the impact of their votes.

Johnson wrote that there are cases where the constitutional provisions have not been met because a law was "confusing, vague, or not contained in the initiative itself." But he says that wasn't the case with I-747.

The title of I-747 is crystal clear, and the body specifies what laws are being amended and the effect of the amendment. If a voter were to simply read the text of the initiative, the voter would have understood that I-747 reduced the property tax levy limit to one percent.

This is not misleading.

Eyman, who had a victory at the polls Tuesday with a measure designed to limit state tax increases, had predicted this morning that the court would rule in his favor. But, he said in an e-mail statment, if he was wrong and I-747 was tossed out

then local governments will go on a reckless rampage and radically jack up property taxes. It'll be like pigs at the trough.

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