Last month several House Democrats joined the Washington Education Association (WEA) and the League of Education Voters to file a lawsuit to overturn the four-time voter approved 2/3 vote requirement for tax increases.

On Monday the state responded. From the state’s brief (in-part):

“Defendants admit that plaintiffs’ Complaint challenges the constitutionality of RCW 43.135.034, and that citations in the Complaint are to RCW 43.135.034, currently in effect. Defendants deny that RCW 43.135.034 is unconstitutional. Defendants admit that plaintiffs purport to challenge the provisions of a statute not currently in effect, RCW 43.135.035, if and when it takes effect. Defendants deny that such a claim properly is before the Court, and deny that RCW 43.135.035 is unconstitutional.

Defendants deny that RCW 43.135.034 is unconstitutional facially or as applied . . .

By way of further answer and affirmative defense, Defendants allege as follows:

1. This action is not justiciable;

2 This action is not ripe;

3. Plaintiffs lack standing;

4. This action is barred by the separation of powers doctrine;

5. This action is barred by the political question doctrine;

6. The Complaint fails to state a claim upon which relief may be granted.

Defendants respectfully requests relief as follows:

1. That the Complaint be dismissed, and that no relief be granted to plaintiffs;

2. For such other and further relief as this Court deems just and appropriate.”

Should the King County Superior Court decide to move forward with the case and not grant the state’s request to dismiss the lawsuit, it is likely we’ll see the same arguments made to the 2008 challenge to the law.

Here is what the Attorney General’s Office said (in-part) back in 2008 about the constitutionality of the 2/3 vote requirement when it was last challenged in court (page 37 – legal citations omitted):

“Petitioner attempts to meet her ‘responsibility of proving that [RCW 43.135.035(1)] is unconstitutional beyond a reasonable doubt’ on the basis of a constitutional provision that, by its own terms, does not prohibit the statute that she challenges. Article 2, Section 22 provides, ‘[n]o bill shall become a law unless . . . a majority of the members elected to each house be recorded thereon as voting in its favor.’ Article 2, Section 22 establishes a constitutional minimum number of votes for a bill to become law. It only describes the circumstances under which a bill does not pass. In other words, Article 2, Section 22 does not prohibit statutes by which the legislature (or the people) express their legislative policy judgment that certain types of bills warrant greater than simple majority consensus for passage. RCW 43.135.035(1) expresses such a legislative policy judgment—that a two-thirds majority vote of each house should be required for passage of bills raising taxes. The statute hardly conflicts with the constitutional floor set by Article 2, Section 22, as any bill receiving its supermajority support has met the requirement of Article 2, Section 22 . . .

Both the framers of the constitution and subsequent legislatures and voters have recognized that certain specified actions should command the support of more than a simple majority. Petitioners, to the contrary, urge that the same constitutional convention that embraced supermajorities for some purposes intended to prohibit statutes requiring supermajorities for any other purposes. The Constitution contains no language supporting this notion, however. The framers may not reasonably be presumed to have implied the prohibition of a political mechanism that they themselves adopted through language that does not say so. Given the plenary legislative authority of the people and the legislature, and the absence of a clear constitutional prohibition, the Court should not conclude otherwise.”

Regardless of what the Court decides to do, the only sure way to end this debate once and for all is for Washingtonians to have the opportunity to vote on a constitutional amendment. This would provide the public and businesses with predictability about whether this tax protection will exist from year to year and whether or not the four-time approval of the voters for this policy was a fluke or actually reflects their consistent and ongoing desire for lawmakers to build a strong public consensus on the need for any proposed tax increase.


[Reprinted from the Washington Policy Center blog; photo credit: flickr]