Taxing Judicial Restraint: How Washington's Supreme Court Misinterpreted Its Role and the Washington State Constitution

• Publication year: 2013

SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 2, Winter 2014

NOTE

Taxing Judicial Restraint: How Washington's Supreme Court Misinterpreted its Role and the Washington State Constitution

Nicholas Carlson(frn*)

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution.(fn1)

I. INTRODUCTION

In the realm of constitutional interpretation, the judicial department reigns supreme.(fn2) When a judge wields his or her interpretive power to "say what the law is,"(fn3) nothing constrains the judge from concluding that the text means whatever the judge wants it to mean. In fact, when the textual language at issue fails to support the ultimate outcome, judges routinely look to sources other than the constitution's text to justify a result.(fn4) This behavior, however, corrupts the judge's interpretive role.(fn5) Although the judge remains cloaked under the guise of interpreting the constitution's text, the judge is constructing it, which is not a proper function of the court.(fn6)

League of Education Voters v. State (League) exemplifies the judiciary's potential abuse of its interpretive role(fn7): The Washington Supreme Court misinterpreted its judicial function because it ignored the text of Washington State's constitution and held a statute unconstitutional.(fn8) The court, therefore, voided a statute because of judicial volition, not because Washington's constitution demanded that outcome.

This Note challenges the reasoning in League and makes a novel suggestion for Washington State constitutional analysis, an approach that may apply to other states.(fn9) Washington courts must reinvigorate the be-yond-a-reasonable-doubt doctrine, which declares that a statute is constitutional unless the challenger proves the statute unconstitutional beyond a reasonable doubt.(fn10) Courts have been saying for over a century that this doctrine emerged out of judicial deference to the legislature, a coequal branch, as if "deference" prevents courts from striking down otherwise unconstitutional statutes.(fn11) This Note proposes a new rationale and purpose for the doctrine: The beyond-a-reasonable-doubt doctrine should exist to prevent judges from striking down otherwise constitutional laws.(fn12)

In this Note, Part II discusses the background of League of Education Voters v. State and constitutional interpretation in Washington. Part III examines the League court's reasoning. Part IV details a new analytical framework for constitutional analysis through the reformed beyond-a-reasonable-doubt doctrine and applies that framework to the Supermajority issue addressed in League. Part V concludes the discussion.

II. THE SUPERMAJORITY'S HISTORY AND WASHINGTON CONSTITUTIONAL ANALYSIS

A. Brief History of the Supermajority Requirement

In 1993, voters approved initiative I-601, later codified into statute as RCW 43.135.034.(fn13) This initiative imposed a voting restriction on bills that increased taxes.(fn14) Before a new tax measure could become law, it needed approval from two-thirds of the legislative members in both houses(fn15) (the Supermajority).(fn16) Washington's constitution, however, only requires a simple majority vote of members-more than half-before a bill may become law.(fn17) The goal of the Supermajority requirement was to erect a hurdle against the ordinary simple-majority passage of new taxes by requiring an increased consensus, effectively preventing the legislature from increasing taxes in Washington.(fn18)

Political opponents of the Supermajority voiced their opposition before the 1993 election, abhorring the consequences of requiring more than a simple majority vote for new taxes: "The requirement for two-thirds agreement in the legislature . . . could very well put control of the state's future in the hands of a small group of legislators with extreme views. Majority rule protects everyone."(fn19) Nineteen years later in 2012, Supermajority opponents continued this battle cry, arguing that the Su-permajority achieved its purpose of limiting taxes but at great conse-quence.(fn20) They argued that a Supermajority requirement made new tax measures practically impossible to pass.(fn21) As a consequence, the Super-majority prevented the legislature from raising necessary revenue to fund desirable programs such as education.(fn22)

Preceding its ultimate fate of unconstitutionality, the Superma-jority endured a litigious history for twenty years.(fn23) Before initiative I-601 went into effect, challengers to the Supermajority brought a writ of mandamus action to the Washington Supreme Court, claiming that the Supermajority provision violated Washington's constitution.(fn24) The court dismissed the mandamus action as a nonjusticiable controversy because the initiative had not entirely gone into effect and because ambiguity existed regarding how the law would function.(fn25) In 2009, after the senate president refused to forward a bill to the house of representatives because it received only a simple majority vote, not the Supermajority, a frustrated senator turned to the Washington Supreme Court for help.(fn26) The senator demanded a writ of mandamus that would compel the senate president to forward the bill. The senator also demanded a declaratory judgment that the Supermajority violated Washington's constitution.(fn27) The Washington Supreme Court refused to address the Supermajority's constitutionality and dismissed the case, holding the mandamus action presented a nonjusticiable political controversy.(fn28)

The Washington Supreme Court's continued refusal to address the constitutional issue, however, did not deter Supermajority opponents. The following facts provided justification for the Washington Supreme Court to ultimately find a justiciable controversy and decide the constitutional challenge.(fn29) In 2011, Substitute House Bill 2078 (SHB 2078) purported to narrow a tax deduction(fn30) for large banks and other financial institutions and to direct the projected revenue toward funding classroom-size reductions in kindergarten through third grade.(fn31) SHB 2078 gained simple-majority approval in the house of representatives, not the statutorily imposed Supermajority for new tax measures, and therefore died swiftly in the house without reaching the senate or the governor's pen.(fn32)

As a result of SHB 2078's failed passage, the League of Education Voters, the Washington Education Association, twelve Washington State legislators, and individual taxpayers (collectively, LEV), filed a complaint against the State of Washington in King County Superior Court.(fn33) The plaintiffs sought a declaratory judgment that the Superma-jority requirement-RCW 43.135.034-violated article II, section 22 of Washington State's constitution.(fn34) Pursuant to statute, the Washington State Attorney General defended the Supermajority as constitutional.(fn35) The trial court held that the Supermajority violated article II, section 22 of Washington's constitution and declared the statute unconstitutional.(fn36) The State appealed that decision.(fn37)

After almost twenty years of finding the controversy nonjusticia-ble, the Washington Supreme Court held that the legislators who voted in favor of SHB 2078 had standing to challenge the Supermajority.(fn38) The court reasoned that the Supermajority undermined the effectiveness of the legislators' votes because the bill received simple-majority approval, a number that would satisfy article II, section 22's bill passage require-ment.(fn39) Finally, the Washington Supreme Court reached the constitutional merits.(fn40)

B. Arguments to the Supreme Court

Article II, section 22 provides that "[n]o bill shall become a law unless on its final passage . . . a majority of the members elected to each house be recorded thereon as voting in its favor."(fn41)

LEV argued that the Supermajority requirement conflicted with this language.(fn42) Specifically, LEV argued that article II, section 22 requires only a "majority"-more than half (a simple majority)-of members in both legislative houses to pass a law, and therefore, the legislature cannot require more than a simple majority by statute.(fn43) This argument asserted that article II, section 22's voting requirement creates both a floor and a ceiling: A bill cannot receive less than a simple majority and still become law (the floor), and a bill also cannot be required to receive more than a simple majority before it becomes law (the ceiling).(fn44)

The State disagreed with the ceiling portion of LEV's interpreta-tion.(fn45) According to the State, article II, section 22 merely creates a minimum voting requirement-a floor: No bill can become law if it receives less than a simple majority.(fn46) Addressing the ceiling argument, the State contended that the text in article II, section 22 does not address this is-sue.(fn47) Under Washington State constitutional analysis, if the text of article II, section 22 only addresses a minimum voting requirement but does not address a maximum-a ceiling-the legislature may statutorily require more than a simple majority.(fn48) Thus, under the State's interpreta-tion, the Supermajority would be constitutional.(fn49)

C. Constitutional Analysis in Washington State

Several fundamental constitutional...