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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