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Debating power and principle in the Lieutenant Governor’s office

The Senate Chamber in the State Capitol. Credit: Allyce Andrews

For the first time in 20 years, there’s an open race to determine Washington’s next Lieutenant Governor. Eleven candidates have thrown their hat into the ring, but only one — state Sen. Cyrus Habib, D-Bellevue, — has drawn the ire of outgoing Lt. Governor Brad Owen, who’s held the office for the past 20 years.

In a sharply worded letter released to the media last week, Owen criticizes Habib for making campaign promises that Owen asserts are either unconstitutional or inappropriate given the duties of the Lieutenant Governor.

The most substantive criticism Owen makes — and the one that has received the most attention in the media — is a constitutional objection to Habib’s talk that he would not sign an unconstitutional bill or budget.

Looked at through recent legal decisions, Owen’s criticism doesn’t hold up.

What Habib has promised is that, because the Lieutenant Governor presides as President of the Senate, he would consider not signing a budget that fails to fully fund education under the State Supreme Court’s ruling in McCleary v. Washington. In McCleary, the state Supreme Court found that the Legislature was unconstitutionally shortchanging the funding of education — the state’s “paramount duty” — and later held the Legislature in contempt for failing to pass a budget that fully funds education.

Owen asserts that for Habib to decline to sign a bill that comes before him, even one that is unconstitutional, is itself  “irresponsible and unconstitutional.” That’s because, according to Owen, signing bills passed by the Senate is the Lieutenant Governor’s “ministerial duty” — something he must do.

Owen also suggests that if Habib refuses to sign bills or budget — even unconstitutional ones — Habib would “cause rancor and political mistrust” within the Senate, render the Lieutenant Governor’s position “meaningless and ineffective,” and possibly even lead to the abolishment of the Lieutenant Governor’s office altogether.

That’s a pretty grim picture. But, as a constitutional attorney, I find Owen’s objection to Habib’s position legally unsound and historically inaccurate — and Owen’s own actions and decisions as Lieutenant Governor prove as much. (Disclosure: I’m an attorney in private practice at Perkins Coie LLP, which also employs Mr. Habib in an administrative capacity. I have not contributed to or endorsed any of the candidates in the Lieutentant Governor’s race.)

Let’s start with the assertion that the Lieutenant Governor must sign every bill that passes the Senate. Back in 2008, a majority of the state Senate voted to pass a bill that would have increased taxes. At the time, however, there was a state law that required a two-thirds majority to increase taxes. Over the objection of then-Senate Majority Leader Lisa Brown, Owen refused to sign the bill, because Owen agreed with Republicans that it needed a two-thirds majority.

Then things got interesting. Brown sued Owen in his official capacity, asking the State Supreme Court to order Owen to sign the bill. Brown made the same argument that Owen advances in his letter to Habib: that the Lieutenant Governor has a duty to sign a bill that received enough votes to pass the Senate.

For his part, however, Owen argued that signing bills was “discretionary” not “ministerial,” and that the Lieutenant Governor has the flexibility to decline to sign a bill if he makes a parliamentary ruling that the bill violates state law. In fact, in his brief to the Supreme Court, Owen argued that “neither the Senate Rules nor any law places on [the Lieutenant Governor] a duty to forward Senate Bills to the House,” and that “[t]here is no rule of the Legislature even approximating a requirement that [the Lieutenant Governor] forward a Senate Bill on to the House.” Owen went on to argue that the Lieutenant Governor “has no duty to forward Senate bills to the House.”

In other words, back in 2009, Owen took the same position that Habib is taking now on the campaign trail: that the Lieutenant Governor can refuse to sign bills if he makes a parliamentary ruling that doing so violates state law. And, as it turns out, the Supreme Court unanimously agreed with Owen — the 2009 Owen, that is — concluding that signing bills is a “discretionary decision.”

That decision was not an outlier. Back in 1994, two years before Owen was elected Lieutenant Governor, the state Supreme Court rejected a similar lawsuit, reasoning that the “signing of a bill is not a ministerial task,” but rather a discretionary one.

In fact, the notion that the Lieutenant Governor’s bill-signing role is discretionary rather than ministerial goes back nearly a century to a 1926 State Supreme Court decision that held only those duties “imposed expressly by law . . . involving no discretion in its exercise” may be considered “ministerial” and therefore “mandatory and imperative  But as Owen himself pointed out in 2009, there is no law “even approximating” the duty to sign bills.

What’s most surprising is that just last year Owen did virtually the same thing that Habib is telling voters he might do. In March 2015, Owen refused to enforce a Republican-led Senate Rule requiring a two-thirds majority vote before passing a tax increase, because the State Supreme Court had ruled that such a requirement was unconstitutional. In making his ruling, Owen wrote that as Lieutenant Governor his “duty is to keep the legislature from acting in an unconstitutional manner, and decisions of the Supreme Court help establish those limitations.”  That’s not all. Owen even wrote that while the Lieutenant Governor is “generally reluctant” to make constitutional rulings, “[t]hat reluctance does not apply when the body steps outside the limitations established by the constitution or Supreme Court, either through the adoption of rules or consideration of other legislation in a manner or form that allows the Senate itself to act unconstitutionally.” (Emphasis added.)

On several other occasions over the past 20 years, Owen has applied State Supreme Court rulings to his decisions, such as when he adopted the Supreme Court’s 1999 ruling in Legislature v. Locke, prohibiting the inclusion of substantive law in a budget.

Given these 90 years of precedent, and Owen’s own history of refusing to sign onto Senate bills or actions that violate state law, the grim picture that Owen paints of what might happen if Habib were to decline to sign a bill is simply fiction. The Senate did not devolve into chaos, nor was there a constitutional amendment to abolish the Lieutenant Governor’s office, when Owen refused to allow the Legislature to include substantive law in budgets in 2001, or when he refused to sign a bill in 2008, or even after Owen struck down Senate Republicans’ attempt to re-impose an unconstitutional two-thirds supermajority requirement in 2015.

Plus, even if a future Lieutenant Governor made a parliamentary ruling that a certain bill was unconstitutional — and based on the ruling, refused to sign the bill — a majority of the Senate could still overrule that decision, and the Lieutenant Governor’s signature is not required to confirm that a bill has passed the Senate. As Owen himself pointed out to the Supreme Court in 2009, the Senate simply needs to “communicate its final action on any bill or resolution . . . in writing, signed by the secretary or clerk,” but that the Lieutenant Governor “is not the Secretary or Clerk of the Senate.”

In light of that history, Habib’s rather modest proposal — that he might not sign a budget that contradicts a constitutional holding from the state Supreme Court that the Legislature must fully fund education — is unlikely to cause the discord and chaos that Owen predicts. On the contrary, Habib’s proposal is rooted in a century of legal precedent and institutional history, an extension of what Owen himself has done over the past 20 years, and consistent with what Owen argued to the State Supreme Court in 2009.

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