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The process, not the substance


Here’s a good example, in the just-released Washington Supreme Court case of Lisa Brown v Brad Owen, of why you often have to be careful in assessing what has just happened. The case was decided, but the question it answered wasn’t what you might have thought it was.

For example, this from a press release today from Senator Mike Hewitt: “Today’s state Supreme Court decision was a win for the people of Washington. Their approval of Initiative 960 told the Legislature that they wanted it to show restraint when raising taxes, and they wanted more transparency when it came to knowing how much legislation would take out of their pockets. It’s great news, especially as we’re hearing talk of new taxes to fill the state’s budget hole, that the public will be protected from the Legislature passing huge tax hikes by a simple majority vote.”

Hold on a moment.

The underpinning is Initiative 960, a Tim Eyman measure passed in 2007. The first descriptive sentence in the voter guide said that “This measure would require either a two-thirds vote in each house of the legislature or voter approval for all tax increases,” and that pretty much describes it. But its constitutionality was challenged, even before its passage, and that issue remained an open question.

On February 29, 2008, the Senate voted on Senate Bill 6931, which ordered that “the liquor control board shall add an equivalent surcharge of $0.42 per liter on all retail sales of spirits, excluding licensee, military, and tribal sales.” the money could go half to substance abuse treatment and half to DUI enforcement efforts. It was in effect a tax increase measure. The vote was 25-21 in favor, but Lieutenant Governor Brad Owen ruled that the measure had failed, because it didn’t receive a two-thirds vote. Senate Majority Leader Lisa Brown, who supported the bill, protested, saying I-960 was unconstitutional. Owen replied that courts decide constitutionality, he wasn’t a court, and that was that. Brown took the matter to the Washington Supreme Court, asking for a writ of mandamus – an order declaring that the bill had indeed passed and therefore needed to be advanced to the House for action there. (Both Owen and Brown, by the way, are Democrats.)

The Supreme Court left Owen’s ruling in place. But what’s key here is why.

From the decision: “Although Brown argues this case is a ‘straightforward constitutional question,’ this court cannot reach this question unless we have jurisdiction to do so.” The Supreme Court said that it doesn’t have jurisdiction to interfere in the internal business of another branch of government: “A writ of mandamus contravening a parliamentary ruling by the president of the senate is such an improper check. A ruling by this court overturning the president of the senate’s ruling on a point of order would undermine the constitutional authority of the senate to govern its own proceedings and the lieutenant governor’s duty to preside over those proceedings.”

So: “The power to establish and administer the procedural rules of the legislature has been committed solely to the legislature – not to the judiciary. These internal rules are essential to the senate’s effectiveness as a legislative body. We find that it would be impossible to overturn Owen’s parliamentary ruling – particularly where no member of the senate attempted to do so by exercising a right of appeal – without expressing disrespect for that body. Finding this a political question, we hold that a mandamus action is inappropriate.”

A straight-ahead challenge, at this point, to the constitutionality of I-960, in other words, would be another matter. The court gave no indication of how it would rule there.

So be careful if someone tries to color this as an upholding I-960 . . .

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