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Posts published in “Day: November 21, 2007”

A revolutionary upholding of law?

Richard Sanders

Richard Sanders

Thejust-released decision in Washington State Farm Bureau Federation v. Gregoire by the Washington Supreme Court could almost be a straddler in its majority opinion, perhaps reflecting the variety of views that resulted in no fewer than five documents (including concurrances and dissent) in the decision folder today.

Much the most striking was the dissent offered by Justice Richard Sanders, which ended with an unexpected bit of wit: "Aside from that, I concur in the remainder of the majority's opinion." Witty, of course, because he had ripped into practically every underlying premise the majority had; unexpected, because his own views are so . . . well, read them for yourself below.

The case was a response to Initiative 601, passed as the Taxpayer Protection Act by Washington's voters in 1993, aimed at limiting the ability of the legislature to raise taxes. When in 2005 the legislature raised tobacco and alcohol taxes, a coalition (including the Farm Bureau) sued, saying it had violated the terms of the initiative.

The main decision skirted the key issues here, holding (though some of the reasoning here seems obscure) that the legislature's action didn't formally violate the initiative's terms. But much of the argument centered on a point the majority seemed not to want to formally nail down: The relationship between initiatives and the legislature. The majority opinion suggested but stopped barely short of saying explicitly that Initiative 601 ran afoul of the constitution, because it tried to bind the legislature in a way that only the constitution itself could.

The basic rule, commonly understood around the country in states that allow initiatives, is that legislation passed by initiative has the same standing as laws passed by the legislature. Just as any session of a legislature can revise laws passed by earlier sessions, and as initiatives can amend laws passed by legislatures, so legislatures can - possibly at their political peril - revise or even toss out measures passed by initiative. All these variations have happened in many states, Oregon and Idaho included, and all of this is commonly accepted as understood process. The Washington Supreme Court majority apparently does too: "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."

Besides the main majority opinion, the case generated four other concurrences or dissent. There's a broader and recommended overview of court reactions to the case on the David Postman blog. Here, we'll focus more specifically on Sanders.

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It seemed like a good idea

Portland has a reputation of being a city where a variety of people can co-exist peaceably, without major uproar. But maybe we need to readjust that view: The heels seem to be digging in, and if the furies are getting this intense over the naming of a street, you have to wonder what will happen when decisions have to be made about something, you know, important.

We're referring, of course, to the city civic issue in town for the last couple of months (maybe the city should be delighted that nothing more important has had to seize its attention), the proposed renaming of Interstate Avenue in Northeast Portland to Cesar Chavez Boulevard. Several Hispanic groups had sought the name change (noting that major throughways had been renamed for Martin Luther King and Rosa Parks), and Mayor Tom Potter jumped in with them.

But the proposal drew big resistance and angry meetings at the neighborhood, where Interstate Avenue had just in recent years become (owing to a MAX train line and revived commerce) something of a local brand name. The rest of the city council has been trying to deal with the situation for months now.

We thought they might have found an elegant solution in the proposed (four council members loosely expressing support for) A Chavez renaming of Southwest 4th Street, the street on which sits City Hall. How could the Hispanic activists, or even the mayor, dis that idea? Turned out, they did. And so did another ethnic group, the business and other people of the city's Chinatown, through which 4th runs (for a short distance). (Potter, who declared himself "irrelevant" at one council session on the topic and consistently has rejected any but the Interstate option, seems to be ever more determined to lock in his own description as accurate.)

So now the report is that the city council is bagging the whole Chavez rename idea. Maybe just as well, at least until the concept of compromise returns to the discussion.