Brown v. Owen, 81287-0.

CourtUnited States State Supreme Court of Washington
Citation206 P.3d 310,165 Wash.2d 706
Decision Date05 March 2009
Docket NumberNo. 81287-0.,81287-0.
PartiesLisa BROWN, Washington State senator and majority leader of the Washington State Senate, Petitioner, v. Brad OWEN, lieutenant governor of the state of Washington, Respondent.
206 P.3d 310
165 Wash.2d 706
Lisa BROWN, Washington State senator and majority leader of the Washington State Senate, Petitioner,
Brad OWEN, lieutenant governor of the state of Washington, Respondent.
No. 81287-0.
Supreme Court of Washington, En Banc.
Argued September 9, 2008.
Decided March 5, 2009.

[206 P.3d 312]

Hugh Davidson Spitzer, Thomas Fitzgerald Ahearne, Ramsey E. Ramerman, Foster Pepper PLLC, for Petitioner.

Maureen A. Hart, James Kendrick Pharris, Attorneys at Law, Jeffrey Todd Even, Office of the Attorney General, Olympia, WA, for Respondent.

Micah Louise Balasbas, Attorney at Law, Tacoma, WA, Seth Leslie Cooper, Attorney at Law, Fairfax, VA, for Amicus Curiae on behalf of American Legislative Exchange Council.

Kristopher Ian Tefft, Association of Washington Business, Olympia, WA, for Amicus Curiae on behalf of Association of Washington Business.

Richard M. Stephens, Samuel A. Rodabough, Brian Donald Amsbary, Groen Stephens & Klinge LLP, Bellevue, WA, for Amicus Curiae on behalf of Voters Want More Choices, Amicus Curiae on behalf of Tim Eyman, Amicus Curiae on behalf of Mike Fagan, Amicus Curiae on behalf of Jack Fagan.

Michael J. Reitz, Jonathan D. Bechtle, Attorneys at Law, Olympia, WA, for Amicus

[206 P.3d 313]

Curiae on behalf of Evergreen Freedom Foundation, Amicus Curiae on behalf of Washington State Farm Bureau, Amicus Curiae on behalf of Americans for Tax Reform, Amicus Curiae on behalf of National Taxpayers Union, Amicus Curiae on behalf of Nfib Small Business Legal Center.


¶ 1 Petitioner Washington State Senator Lisa Brown seeks a writ of mandamus ordering respondent Lieutenant Governor Brad Owen to forward Senate Bill 6931 (SB 6931) to the Washington State House of Representatives. S.B. 6931, 60th Leg., Reg. Sess. (Wash.2008). SB 6931 was brought before the senate for a vote on February 29, 2008. Pursuant to the supermajority requirement under RCW 43.135.035(1), Owen ruled SB 6931 required the approval of two-thirds of the senate for passage.1 After it failed to receive sufficient votes, it was declared lost. Brown additionally requests a declaratory judgment invalidating the supermajority requirement of RCW 43.135.035(1) as unconstitutional under article II, section 22 of our state constitution. Because we find this an inappropriate action for mandamus, we do not reach this question.


A. Taxpayer Protection Act

¶ 2 Washington voters approved Initiative Measure 601 in 1993. LAWS OF 1994, ch. 2. Initiative 601 added a provision, effective after July 1, 1995, that "any action or combination of actions by the legislature that raises state revenue or requires revenue-neutral tax shifts may be taken only if approved by a two-thirds vote of each house." Former RCW 43.135.035(1) (1994) (LAWS OF 1994, ch. 2, § 4(1)). This provision, along with other parts of the initiative, was codified at chapter 43.135 RCW, known as the Taxpayer Protection Act (TPA). Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wash.2d 284, 292, 174 P.3d 1142 (2007).

¶ 3 Before Initiative 601 went into effect, a group including public advocacy groups, legislators, and citizens sought to prevent its implementation, asking this court for a writ of mandamus ordering the legislature and its officers "`to adhere to the requirements of the Washington State Constitution and to prohibit them from implementing and enforcing Initiative 601.'" Walker v. Munro, 124 Wash.2d 402, 407, 879 P.2d 920 (1994) (quoting petition). We declined, holding that mandamus was inappropriate because this court may not compel legislative officers to perform discretionary duties such as determining whether Initiative 601 applies to a particular bill. Walker, 124 Wash.2d at 410, 879 P.2d 920. We stated that we would not act to issue a mandamus against a presiding officer of either house "until after a state officer has undertaken action under the initiative and there is a claim that the officer has abused his or her discretion." Id. at 411, 879 P.2d 920.

¶ 4 We also found petitioners' claim to be nonjusticiable, as Initiative 601 had not yet taken effect and concerned political questions. Walker, 124 Wash.2d at 411, 879 P.2d 920. "The course of future events is, at this time, purely speculative and subject to a challenge when a specific dispute arises in regard to a particular bill. Until presented with an existing, fact-specific action, this court will not involve itself in what is an essentially political dispute." Id. at 413, 879 P.2d 920. We pointed out that although petitioners speculated Initiative 601 would cause future harm, it was just as likely that the legislature would amend the initiative to prevent those harms. Walker, 124 Wash.2d at 413-14, 879 P.2d 920. This is, in fact, what the legislature has done.

¶ 5 Since its enactment, "[t]he TPA has been revised, amended, and reenacted many times." Wash. State Farm Bureau, 162 Wash.2d at 292, 174 P.3d 1142. In 1998, the legislature expressly "reenacted and reaffirmed" Initiative 601 and also exempted certain

206 P.3d 314

state accounts from its requirements.2 LAWS OF 1998, ch. 321, § 14. During the 2000 second special session, the legislature strengthened the TPA's expenditure limits. LAWS OF 2000, 2d Spec. Sess., ch. 2. In 2002, the legislature again reenacted and reaffirmed Initiative 601 but temporarily suspended its requirements for the 2001-03 biennium to address revenue shortfalls. LAWS OF 2002, ch. 33, § 1.3

¶ 6 The legislature reenacted and amended the TPA in 2005 but suspended the supermajority requirement from April 18, 2005, to June 30, 2007. LAWS OF 2005, ch. 72, § 2. Before the expiration of the exemption period, the legislature reimposed the supermajority requirement in Engrossed Substitute Senate Bill 6896, effective June 30, 2006. LAWS OF 2006, ch. 56, § 8.4

¶ 7 In 2007, voters approved Initiative 960, which amended, among other things, RCW 43.135.035(1). LAWS OF 2008, ch. 1, § 5. Initiative 960 faced a preelection challenge by petitioners seeking to prevent Secretary of State Sam Reed from placing the measure on the ballot. Futurewise v. Reed, 161 Wash.2d 407, 408, 166 P.3d 708 (2007). Petitioners sought an injunction and a declaratory judgment, holding the voter and legislative approval requirements for tax increases unconstitutional. Id. at 409, 166 P.3d 708. We held the preelection challenge to an initiative to be nonjusticiable, stating, "[t]hat the law enacted by an initiative might be unconstitutional does not mean that it is beyond the power of the State to enact." Id. at 411, 166 P.3d 708 (citing Coppernoll v. Reed, 155 Wash.2d 290, 302-04, 119 P.3d 318 (2005)).

¶ 8 Initiative 960 took effect on December 6, 2007.5 LAWS OF 2008, ch. 1, § 19. RCW 43.135.035(1) (LAWS OF 2008, ch. 1, § 5(1))6 now reads,

any action or combination of actions by the legislature that raises taxes may be taken only if approved by a two-thirds vote of each house of the legislature, and then only if state expenditures in any fiscal year, including the new revenue, will not exceed the state expenditure limits established under this chapter. Pursuant to the referendum power set forth in Article II, section 1(b) of the state Constitution, tax increases may be referred to the voters for their approval or rejection at an election.

B. Senate vote on SB 6931

¶ 9 Senator Brown is majority leader of the senate. She is one of the 25 members who voted in favor of SB 6931. Under our constitution, Lieutenant Governor Owen's duties include serving as president of the senate. CONST. art. III, § 16.

¶ 10 This latest challenge to the TPA springs from Owen's ruling on a point of order before the senate. Article II, section 9 provides that each legislative house "may determine the rules of its own proceedings." The permanent rules of the senate govern those proceedings.7 Under the permanent rules, the president of the senate may speak to points of order and must decide all questions of order, subject to appeal by any member. 1 SENATE JOURNAL, 60th Leg.,

206 P.3d 315

Reg. Sess., at 8 (Wash.2007) (rule 1.4). He must decide and announce the results of all votes. Id. at 8, 12 (rules 1.8, 32). He must sign all acts and resolutions in an open session of the senate. Id. at 8 (rule 1.5). Members may discuss all points of order and appeal all decisions by the president of the senate. Id. at 12 (rule 32). Any senator may enter a protest against any action of the senate on any question. Id. (rule 34). Permanent rules may be changed or temporarily suspended by a majority of the senate. Id. (rule 35).

¶ 11 The rules committee placed SB 6931 for a second reading on February 29, 2008. SB 6931 proposed the reenactment of an increased tax on liquor sales. Rule 62 requires that bills be read on three separate days before a vote is taken unless the senate agrees to suspend this requirement. 1 SENATE JOURNAL, supra, at 17. Upon the motion of Senator Adam Kline, one of the bill's sponsors, the rules were suspended to allow SB 6931 to advance to the third reading, placing it before the senate for final passage.

¶ 12 Before the vote was taken, Senator Tim Sheldon raised a point of order, asking Owen, as president of the senate, to declare the number of votes necessary for the bill to pass in light of Initiative 960. Sheldon argued that because the bill imposed a tax, Initiative 960 required the bill receive two-thirds approval of the senate in order to pass. Before Owen ruled, Brown addressed the senate, asking Owen to rule that a simple majority was only required:

"Mr. President I believe this Point of Order raises a dilemma and I'd like to elaborate on that a bit. Like you each of us took an oath when we took office, in part that oath requires us to follow the Constitution and laws of the United States and the state of Washington. Unfortunately, sometimes the laws and the Constitution conflict and I believe this is one of those times. ... Mr. President, a...

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