State supreme court will hear our 1366 appeal on March 15th

by | Feb 25, 2016

 Lawyer for 1366 opponents:  “We just don’t know why voters enacted this initiative.”

        Lawyer from the AG’s office:  “Plaintiffs don’t give voters enough credit.  1366 was not overly long.  It was not complicated.”  

        On March 15th, oral arguments will be heard before the state supreme court on our 1366 appeal.

        Although the AG’s office is doing a fine job defending the voters’ approval of 1366, we also have our own attorney vigorously defending our initiative.  
        Here are a few excerpts from our legal brief:

* In engaging in reviewing whether an initiative is unconstitutional, the Court must interpret the measure in any way possible that would save its constitutionality. … Therefore, Respondents bear the burden of showing I-1366 is unconstitutional beyond a reasonable doubt after the Court interprets the provision in any way which will sustain its constitutionality. This is a burden Respondents cannot successfully bear and the trial court completely ignored the doctrine of constitutional avoidance.

* Respondents claim the initiative “combines a one-time sales tax reduction with a constitutional amendment.” … But the initiative does not combine the sale tax reduction with a constitutional amendment. I-1366 results in either a one-time reduction in the sales tax or a one-time opportunity for the voters to vote on a constitutional amendment. It will not result in both.

* Respondents contend that a reduction in sales tax is not germane to limiting tax increases. That is absurd; of course it is. They are germane because, as the Initiative expressly states: “The state needs to exercise fiscal restraint by either reducing tax burdens or limiting tax increases to only those considered necessary by more than a bare majority of legislators. . . . This measure provides a reduction in the burden of state taxes by reducing the sales tax . . . unless the legislature refers to the ballot for a vote a constitutional amendment requiring two-thirds legislative approval or voter approval to raise taxes and majority legislative approval for fee increases.”  Both provisions are germane to one another because they are both about state government exercising fiscal restraint.

* To resolve the single subject question, the Court should rely on its very recent case, Washington Association Substance Abuse v. State. This Court addressed a challenge to the liquor privatization initiative on single subject grounds. As addressed below, the initiative involved more than privatization of liquor sales, yet this Court rejected the single subject challenge.

* The liquor initiative privatized liquor sales and increased fees on liquor sales. Presumably, some voters wanted privatized liquor sales on the belief that liquor would be available at lower cost and did not want the higher taxes or fees on liquor. Others may have wanted higher taxes and fees on liquor, but opposed the privatization of liquor sales or were ambivalent about it. There is no way to know. This Court correctly concluded that these different provisions were germane to the subject. The same result should occur here. A sales tax reduction is germane to fiscal restraint as is the option given to the legislature to retain the tax upon referring to the voters a constitutional amendment regarding taxes.

* It is undisputed that the voters cannot adopt a constitutional amendment by initiative.  But the voters are certainly free to inform the legislature that they want an opportunity to vote on one.

* Respondents argue that I-1366 is unconstitutional because it interferes with the legislature’s unique role to propose constitutional amendments.  Their argument is nonsensical.  If Respondents refer to “propose” as coming up with the idea, their argument must be rejected because the ideas for legislation and constitutional amendments may come from legislators, constituents, lobbyists, think tanks or an endless list of potential generators of legislative ideas. There is absolutely no law, nor logic, that would dictate that the people through the initiative power cannot suggest to the legislature that someone in the legislative body “propose” an amendment.

* Respondents have the burden to prove unconstitutionality beyond a reasonable doubt. If that burden has any meaning, this Court’s conclusion that I-1366 could be legitimate conditional legislation surely insulates the initiative from Respondents’ contention that it is unconstitutional.

* The voters were clearly told that passage of the initiative would result in the lowering of the sales tax unless the legislature chose to refer a constitutional amendment to the ballot. Voters approved the initiative knowing the legislature would decide how it prefers to respond. The trial court should have left the legislative process alone without intervention.

* In 2015, the voters have done substantially what the Legislature has done in the past — make an amendment to the sales tax statute contingent upon other legislative action by the legislature itself. There is historical precedent for the voters’ decision and the Court should not set it aside or cast doubt on the legislature’s freedom to enact conditional legislation.

* CONCLUSION:  Sponsors urge this Court to resist substituting the Respondents’ policy preferences for those chosen by the people and allow the legislature to consider its response to the initiative before the April 15, 2016 effective date. These issues are all policy decisions within the purview of the legislative branches, both the legislature and the voters.

Respectfully submitted,
Stephens & Klinge LLP
By Richard Stephens,
Attorney for Appellants Tim Eyman, Jack Fagan, & Mike Fagan

         It’s always important to remember that we won the only important fight:  the voters passed Initiative 1366.  That was and is the whole enchilada.  Now that we have the backing of the citizenry, we must continue to press our case.

          How do we do that?  Now that the voters have passed our 6th initiative; we’re moving full steam ahead with our 7th.  It’s called “Tougher to Raise Taxes” and it puts a one-year time limit on any tax increase and requires any fee increase to be approved by a majority vote in both the House and Senate.  In other words, it prohibits forever tax increases and prohibits state agencies from unilaterally imposing higher fees.

       We need your financial support to continue to win these battles on behalf of taxpayers.  Please make a donation today.  With your help and support, we will succeed.