Jolt: Two-thirds rule, extended bar hours both rejected

The day's winners and losers.
Crosscut archive image.
The day's winners and losers.

Today's loser ("Oh, definitely," said Seattle state Rep. Jamie Pedersen, D-43, Capitol Hill): Anti-tax ideologue and initiative hawker Tim Eyman.

King County Superior Court Judge Bruce Heller ruled today that I-1053, the voter-approved Eyman initiative that requires a two-thirds majority vote by the Legislature to raise taxes, is unconstitutional. Attorney General Rob McKenna will certainly fast-track the case to the Washington State Supreme Court.

In a statement, Eyman said Heller had chosen "to ignore [the state supreme court's] same arguments and disregard that previous ruling" upholding earlier versions of the two-thirds mandate. "Is it any wonder that opponents chose to file their case before a Seattle judge? Thank goodness the Attorney General will appeal."

The judge basically tacked to the logic Pedersen has been outlining for more than a year, since he and a crew of liberal state reps forced a vote on a tax increase (to have it lose) as a ploy to establish legal standing in the case.

Pedersen (along with other Democratic state legislators who are also attorneys, such as state Sen. David Frockt, who was a rep at the time, and state Sen. Laurie Jinkins) argued that the state constitution not only outlines specicially what it takes to pass a bill (a simple majority, according to Article 2, Section 22), but also lays out specific exceptions such as requiring a three-fifths vote to pass a bond, two-thirds to override a veto, and two-thirds to amend redistricting proposals.

Highlighting the civics class logic here, Heller wrote today: "The Washington Constitution is a restriction on legislative power rather than a grant of powers. This means that the legislature's power to enact a statute is unrestrained unless the Constitution prohibits it."

The Democrats' smoking gun, which Heller cited as precedent: a state Supreme Court ruling overturning a 1998 voter initiative requiring term limits. The constitution spells out the rules governing elected offices and the court said changing them requires a constitutional amendment.

There were actually two big victories for the Democrats in Heller's ruling. The obvious one is his take on the merits of the case. The judge said the constitution sets out "a clear restriction" prohibiting the Legislature and the people from "requir[ing] more than a majority for passage of tax measures." (This follows, ironically, the political right's strict interpretation philosophy.)

Pedersen and his crew argue that the prescription in the constitution is a floor and a ceiling — you can't go below or above a simple majority as a metric for passing laws. The proponents of the two-thirds rule argued that the language in the constitution is simply a floor. Hmmm. Could the Legislature, the plaintiffs asked rhetorically in court last March, require a unanimous vote to raise taxes?

The other victory for Democrats in Heller's decision was his determination that the case was appropriate for the courts to rule on in the first place. He even cited Marbury vs. Madison, the famous U.S. Supreme Court that establishes "judicial review." The state had argued, in advocating to uphold the two-thirds rule, that the issue was an internal legislative matter — a kind of Catch-22 argument that the courts shouldn't get involved unless the Legislature passed taxes without a two-thirds majority, basically breaking the law. Huh?

But Heller signed off on the plaintiffs' argument that the legislature's inability to raise taxes —  locked in for nearly 20 years by five separate initiatives starting with I-601 in 1993  — was a matter of front-and-center public concern.

This last point plays into the Democrats' hands going forward to the Supreme Court. Asked to game out their chances, Pedersen — referring to this year's landmark McCleary case, when the court said the state wasn't filling its constitutional mandate to fund public education — told Jolt: "The Supreme Court just got done telling us that were  not adeautely funding education, and so we're saying, 'please decide this case, because we need to raise revenue to fund education.' "

A crew of education activists, including both the teachers' union and education reform advocates, are co-plaintiffs with the Democrats in the case.

Today's second loser: Wannabe late-night imbibers, after the state Liquor Control Board denied the city of Seattle's request that it allow cities to petition for later bar service hours.

Citing concerns about public safety, over-service, limited enforcement resources, and the fact that, with privatization, the availability of liquor statewide is about to increase fivefold (from 328 liquor stores to more than 1,500), the three-member board voted 2-to-1 to deny the city's request to allow cities across the state to petition the board for longer hours.

Board chair Sharon Foster said she worried that people would drive to cities with later bar hours, drink, and drive back home. "One common theme, and one that influenced my decision the most, was that a city’s ability to control public safety ends at its borders," Foster wrote.

Board member Ruthann Kurose cited Vancouver, B.C., where extended liquor hours have "forced the Vancouver police to request $900,000 for liquor [and] firearm squads."

In his letter supporting the city's request, dissenting liquor board member Chris Marr noted that the rule change would have merely allowed cities to petition the board for longer hours, and pointed out that by passing I-1183, the liquor privatization measure, Washington State voters made a clear statement that they want more access to alcohol, not less.

"We are not the Liquor Prevention Board, we are the Liquor Control Board," Marr wrote. "Our job is to determine, after fully examining the facts, if we can establish rules which adequately mitigate the clearly identified risks of expanded hours of alcohol availability at on-premise establishments."

The state legislature could decide to allow later bar hours on its own; both Kurose and Foster said that if that happened, they would work, in Kurose's words, to "make it happen."

  

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About the Authors & Contributors

Erica C. Barnett

Erica C. Barnett is the publisher and editor of The C Is for Crank.