Analysis of Brown v. Owen
Posted by Mike Reitz - March 05, 2009The Supreme Court refused to give the Washington Legislature the bailout they hoped for, by declining to strike down a state law that makes it difficult to raise taxes.
This is a great victory for taxpayers in a time when the legislature is eyeing every possible new revenue source.
State law that requires all new taxes or fees to be approved by two-thirds of the members of each house. This two-thirds vote requirement has served as a moderating influence in the legislature, since approved voters in 1993 (Initiative 601). Since that time the legislature has re-enacted the law, temporarily suspended it, and modified it in several amendments. But the basic requirement for supermajority approval of tax increases has remained in place.
Enter Sen. Lisa Brown (D-Spokane), who led a carefully-choreographed effort against the 2/3s law.
During the 2008 legislative session, she proposed a $10 million liquor tax. The measure passed with a simple majority, but failed to get the two-thirds vote needed. Sen. Brown asked Lt. Governor Brad Owen, who acts as the president of the Senate, to rule the two-thirds requirement unconstitutional. "A two-thirds requirement to pass certain types of bills, in my opinion, is antidemocratic and violates the Washington constitution," Brown said. While expressing agreement with Brown, Lt. Gov. Owen ruled that the question is one for the courts to address. This happened on a Friday.
Sen. Brown went to court the next Monday, asking the Supreme Court to order the Lt. Gov. to pronounce the bill passed. In order to accomplish this, she asked the court to invalidate the two-thirds requirement. Sen. Brown argued the supermajority vote requirement is unconstitutional under Article II, Section 22 of the Washington Constitution. The provision states: “No bill shall become a law unless...a majority of the members elected to each house be recorded thereon as voting in its favor.”
The Office of the Attorney General, defending the constitutionality of the law, said the language prohibits bills from passing with less than a majority, but does not forestall the possibility of additional supermajority requirements. Obviously, a bill that receives a two-thirds vote has also received a simple majority vote and thereby satisfies the constitution’s minimal threshold requirements.
Several organizations, including the Evergreen Freedom Foundation, filed amicus curiae briefs in support of the state.
During oral arguments, the Supreme Court justices spent little time on the constitutional question. Instead, they expressed concern about rushing headlong into the legislative process. Several asked why the court should step in when the legislature has the power to amend or repeal the law Sen. Brown is challenging. In fact, one justice asked if Sen. Brown had violated her oath to uphold the constitution by leaving the two-thirds requirement intact when she believes it is unconstitutional.
And this is where today’s unanimous opinion, written by Justice Mary Fairhurst, dwells. The court could only reach the constitutional question if Sen. Brown’s writ of mandamus was proper, and the justices said that such an action would violate the separation of powers doctrine. “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.”
Enter Sen. Lisa Brown (D-Spokane), who led a carefully-choreographed effort against the 2/3s law.
During the 2008 legislative session, she proposed a $10 million liquor tax. The measure passed with a simple majority, but failed to get the two-thirds vote needed. Sen. Brown asked Lt. Governor Brad Owen, who acts as the president of the Senate, to rule the two-thirds requirement unconstitutional. "A two-thirds requirement to pass certain types of bills, in my opinion, is antidemocratic and violates the Washington constitution," Brown said. While expressing agreement with Brown, Lt. Gov. Owen ruled that the question is one for the courts to address. This happened on a Friday.
Sen. Brown went to court the next Monday, asking the Supreme Court to order the Lt. Gov. to pronounce the bill passed. In order to accomplish this, she asked the court to invalidate the two-thirds requirement. Sen. Brown argued the supermajority vote requirement is unconstitutional under Article II, Section 22 of the Washington Constitution. The provision states: “No bill shall become a law unless...a majority of the members elected to each house be recorded thereon as voting in its favor.”
The Office of the Attorney General, defending the constitutionality of the law, said the language prohibits bills from passing with less than a majority, but does not forestall the possibility of additional supermajority requirements. Obviously, a bill that receives a two-thirds vote has also received a simple majority vote and thereby satisfies the constitution’s minimal threshold requirements.
Several organizations, including the Evergreen Freedom Foundation, filed amicus curiae briefs in support of the state.
During oral arguments, the Supreme Court justices spent little time on the constitutional question. Instead, they expressed concern about rushing headlong into the legislative process. Several asked why the court should step in when the legislature has the power to amend or repeal the law Sen. Brown is challenging. In fact, one justice asked if Sen. Brown had violated her oath to uphold the constitution by leaving the two-thirds requirement intact when she believes it is unconstitutional.
And this is where today’s unanimous opinion, written by Justice Mary Fairhurst, dwells. The court could only reach the constitutional question if Sen. Brown’s writ of mandamus was proper, and the justices said that such an action would violate the separation of powers doctrine. “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.”
The court pointed out that Brown could have appealed to her colleagues and overturned Owen’s ruling with a simple majority. Considering all her options, the Supreme Court tartly criticized Brown’s decision to go to court.
Brown appeared to urge Owen to declare [the law] unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings. Having failed to convince Owen to make a legal determination, she now asks this court to make a parliamentary ruling. We decline to do so.
Justice Fairhurst wrapped things up with this:
This original action is improperly before this court on application for a writ of mandamus and is a nonjusticiable political question. Intervention of this court into an intrahouse dispute over a parliamentary ruling to compel the president of the senate to perform a discretionary duty would be a grave violation of separation of powers. We dismiss the action.
Thoughts? Add Comment -
km said on Mar 05 2009 at 10:00pm
Mike: Unanimous opinion with Justice Fairhurst writing. Man, that's a clean sweep. Tie a broom to the mast head Mike. :-)
Bonnie shannon said on Mar 12 2009 at 11:44pm
I applaud the justice who asked if Sen. Brown had violated her oath to uphold the constitution.
Upholding one's oath of office is all that we ask of our elected officials, but this necessitates integrity and a thorough knowledge of what they are promising to uphold. The lack of either MUST disqualify any one from taking the oath and holding office.