If the fact a Judge had to ask this question is troubling to you, the response by the state won’t make you feel any better. As reported by the Tri-City Herald on yesterday’s roll-your-own cigarette tax hearing (emphasis added):

“Roll-your-own cigarettes won’t be hit with a 15-cent tax in Washington when the new law takes effect Sunday, ruled Franklin County Superior Court Judge Bruce Spanner.

The judge granted a preliminary injunction Monday after a hearing in Pasco where plaintiffs claimed the tax violated state law.

Spanner disagreed with state attorney David Hankins, who argued that the court had no right to question why the new tax didn’t have two-thirds approval of the Legislature.

The injunction will take effect when a $200,000 bond or security is posted, Spanner said.

Seattle attorney Chris Weiss said he expects the security will be posted before July . . .

Weiss noted that HB2565 was in response to the Department of Revenue’s position that it did not have the authority to tax roll-your-own cigarettes under the existing law.

Hankins argued it wasn’t a new tax because the tax rate on cigarettes remains the same, and that prepackaged and roll-your-own cigarettes look the same. He held up examples to show the court.

Hankins said the judge had no authority to examine the procedures of the Legislature in approving the cigarette tax, even if it was a work-around on the two-thirds majority requirement.

‘You’re telling me a court in this state has no right to look into whether the Legislature followed the law?’ Spanner asked.

‘Yes, if it is a procedural issue,’ Hankins replied.

Weiss said the governor’s strong support for the tax did not give her ‘the right to override 1053.’

Spanner said he has the right to scrutinize what the Legislature has signed off on.

‘It’s what we’re doing here,’ the judge said.”

In its brief defending HB 2565 the Attorney General’s Office appeared to argue that even if the roll-your-own cigarette tax was indeed a new tax the supermajority requirement wasn’t binding on the Legislature:

“Even if this Court were to conclude that the Cigarette Machine Legislation raises taxes for purposes of RCW 43.135.034, the statutory two-thirds vote requirement cannot, by itself, invalidate the Cigarette Machine Legislation . . .

The Court’s holding in Farm Bureau was explicit: a prior statute (whether enacted by the Legislature or by initiative) cannot prospectively invalidate a later statute. Therefore, RCW 43.135.034 cannot itself prospectively invalidate the Cigarette Machine Legislation.”

Here is an official statement by the Attorney General’s Office in response to yesterday’s court action:

“Today in Benton County Superior Court, Judge Bruce Spanner granted the plaintiffs a preliminary injunction, while this case moves forward, to stop the Department of Revenue from collecting taxes on cigarettes produced by cigarette-making machines. The judge believes that the Legislature would have had to comply with the two-thirds majority requirement for tax increases in order to enforce and collect taxes from ‘roll your own’ cigarette machines. We argue that the cigarette machine legislation did not impose a new tax but rather provided a new method of collecting an existing cigarette tax previously uncollected because the state lacked an effective means of collecting it. The law would have taken effect on July 1, allowing the state to more effectively collect approximately $137,000 a day in cigarette taxes due. Regarding a potential appeal, we will speak to our clients about our options.”

At this time it is unclear what the next steps will be for this case. Meanwhile the state is requesting the Supreme Court stay an earlier King County Superior Court decision on the constitutionality of the 2/3 requirement:

“The State is seeking direct review by the Washington Supreme Court and has filed a motion seeking a stay of the superior court ruling. The Supreme Court Commissioner denied the State’s motion for a stay but referred the motion to the full Court which will consider the motion on July 11.”

Ultimately voters should be provided the final say on whether 18 years of state policy and repeated voter support of the requirement to secure a supermajority vote to raise taxes should remain on the books. This is why lawmakers should provide voters the opportunity to consider a constitutional amendment to help end this debate once and for all.

Additional Information
Are laws binding on the Legislature?

One way or another Supreme Court will eventually rule on 2/3 for taxes


[Reprinted with permission from the Washington Policy Center blog]