League of Education Voters v. State

J.M. Johnson, J.

¶56 (dissenting) — Article II of our constitution, as modified by Amendment 7 to authorize initiatives and referenda, requires action on the part of the legislature or a direct vote of the people to resolve legislative political issues such as taxation. The majority ironically overrides our constitution and prior case law to enforce an invented policy concern: the fear that laws requiring a supermajority to raise taxes permit a “tyranny of the minority.” Majority at 826. There is, of course, no historical evidence justifying such a concern in Washington. With regard to taxation, the historical record in this state is to the contrary; taxes often need a special vote of the people to qualify or pass. School levies and special assessments for *836special purpose districts are only a few examples.8 See, e.g., Const, art. VII, § 2(a) (excess levies require “three-fifths of the voters [and/or] the number of voters voting ‘yes’ on the proposition shall constitute three-fifths of a number equal to forty percent of the total number of voters voting in such taxing district at the last preceding general election . . .”); Gordon v. Lance, 403 U.S. 1, 7, 91 S. Ct. 1889, 29 L. Ed. 2d 273 (1971) (upholding a supermajority requirement).

¶57 There is considerable irony in today’s decision given the majority’s claimed fear of tyrannical minority control. Through a single decision, a court of nine people (actually only six votes) is imposing their policy preference over that of the 1,575,655 voters who passed Initiative 1053 (1-1053) and the millions who qualified and passed similar tax protections.9,10 I regretfully observe that this court has become the tyrannous minority it purports to guard against. This violation of our constitution can only detract from public respect for this court and its decisions. I therefore dissent.11

¶58 The majority opinion suffers from three obvious and grave infirmities. First, the majority’s historical interpre*837tation of the Washington Constitution and its separation of powers incorrectly place the court in a position of preeminence over the legislature and the people. Second, the majority’s plain language reading of article II, section 22 is contrived and illogical. It will be repeatedly observed that our founders could have written article II, section 22 to read as follows: “Every bill attaining a simple majority shall become law.” They choose not to and, as is further explained below, were aware of other states’ constitutional provisions in existence at the time that more clearly establish a simple majority vote as á ceiling. Third, the majority’s historical analysis of article II, section 22 ignores the only evidence this court has ruled admissible to show our framers’ intent. This evidence conclusively establishes that the framers intended this section to create a quorum requirement for bill passage.

¶59 This state’s geographical size and the slow means of travel available at that time could enable legislators from areas closer to the capitol to meet and pass legislation before legislators could arrive from areas located far away. Snow-clogged mountain passes were likely a common source of this problem. Thus, adopting the simple majority language would not protect the citizens of this state living in remote areas. The framers had to adopt article II, section 22 as it is currently written in order to secure a quorum requirement and protect voters living in the far corners of our state. See Proceedings of the Constitutional Convention, Seattle Times, Aug. 9, 1889, at 1, in Washington State Constitutional Convention 1889: Contemporary Newspaper Articles (Marian Gallagher Law Library 1998) (further discussed infra).

*838ANALYSIS

I. The Washington State Constitution First and Foremost Serves To Protect Individual Rights and Private Property

¶60 Incredibly, this six-vote majority overrides the votes of an overwhelming majority of Washington voters out of an invented concern that laws like 1-1053 could impose a “tyranny of the minority.” Majority at 826. This policy concern is better directed at opposing a constitutional amendment that would establish a permanent two-thirds majority requirement than it is for a court decision overturning an initiative that can be changed by the legislature or be periodically renewed by a majority of the voters.

¶61 In the Federalist papers, the founding fathers of our nation briefly addressed their desire to guard against minority control in a few specific policy areas. See The Federalist No. 22, at 141-42 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); The Federalist No. 58, at 392 (James Madison). The majority’s myopic reliance on this narrow concern, however, is unfounded.

¶62 First, historical accounts indicate that the framers of the Washington Constitution had goals and anxieties distinct from those of the framers of the United States Constitution. Above all, the Washington Constitution is predicated on the protection of individual rights, including those related to property, which is clearly affected by taxes. The framers declared the primacy of individual rights in their vision of the role of state government in the very first section of the constitution: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Const, art. I, § 1. A key component of that protection is the direct influence on state government the constitution affords voters. Second, more so than any contrived “tyranny of the minority,” the framers *839sought to prevent corruption and special interests from controlling state government. Again, the framers and those who have drafted constitutional amendments 7 and 8 thought that this was best accomplished by allowing the voters to have more of a direct say in the management of their government, not less.

¶63 Washington’s framers forged a distinct path predicated on mistrust of government and the primacy of individual rights. The citizens of Washington were not alone in these views toward government. The Washington Constitution was adopted during a period of national skepticism toward legislative bodies collectively referred to as “populis[m].” Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 50-51 (2002).

¶64 Even after the ratification of a constitution especially designed to limit government and promote individual rights, Washingtonians have felt the need to periodically reinforce popular control. Legislators (and courts) sometimes forget article I, section I: it is the citizens of this state that empower the legislature. The power is vested in the people. Consequently, in 1912, out of a concern that individual rights needed further protection from elected (and sometimes corrupt) officials, Washingtonians passed Amendment 7, which established the power of initiative and referendum. Passed concurrently, Amendment 8 allowed for the recall of all elected officers except judges.12 Utter & Spitzer, supra, at 50. To this day, the powers of initiative, referendum, and recall vest in the people the ability to hold government accountable. The majority essentially contends that because our nation’s founders expressed their concerns about minority control in a few areas of national concern, Washington’s framers intended to keep Washington voters from limiting the power of the legislature to tax. Given Washington’s unique reliance on popular governance, the majority’s contention is unfounded.

*840¶65 Historical records reveal that the nation’s founders’ main fear was that some states could gain disproportionate power in Congress through bicameralism. See The Federalist No. 58, at 392 (James Madison). In The Federalist No. 22, quoted in the majority opinion, Alexander Hamilton expressed the additional concern that a minority of the states might be able to prevent the nation from making peace during wartime. The Federalist No. 22, at 141-42 (Alexander Hamilton). Fortunately, history has proved these concerns to be overstated. Indeed, this has never been a problem. Certainly, these particular national issues were irrelevant to the framers of our state constitution. Washington’s framers did not have to consider national security or congressional decision making when designing Washington’s government. Washington’s framers instead faced more pressing local and personal issues relating to private property, individual rights, and corruption in government.

¶66 In fact, the prospect of a tyranny (or corruption) of the majority was a far more pressing concern for drafters of a state constitution. While the United States Constitution was created to grant limited and enumerated powers to the federal government, the Washington State Constitution was created to limit the broader, nearly plenary, police power of the state. Utter & Spitzer, supra, at 2. In 1889, the framers were justifiably worried that a legislature would harm minority groups through abuse of its power. The historical record is replete with criticism in this vein. See, e.g., Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q. 227,250 (1913) (“These restrictions on legislative action then, we may conclude, are indicative of the onward march of true democracy, for, of all oppressive and unjust instruments of government the legislature is the greatest and most irresponsible.”) A supermajority requirement for the passage of legislation is *841a powerful tool for combating abuse by a short-term majority and addresses the concerns of the framers.13

¶67 Furthermore, providing such protection against taxation is affirmed in express United States Supreme Court precedent. See Gordon, 403 U.S. at 7 (holding that state constitutional requirement of 60 percent of voters to approve bonded indebtedness and approve the tax increase to pay for the debt did not violate equal protection even though each vote who favored taxes would have a proportionately smaller impact on the outcome of the election than those opposed).14

¶68 In Federalist No. 10, James Madison directly noted that taxation is a tempting tool for a majority to use in its abuse of a minority:

The apportionment of taxes on the various descriptions of property, is an act which seems to require the most exact impartiality; yet, there is perhaps no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they over-burden the inferior number, is a shilling saved to their own pockets.

The Federalist No. 10, at 60 (James Madison). This idea was echoed by Chief Justice John Marshall when he penned the axiomatic words “the power to tax involves the power to destroy.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431, 4 L. Ed. 579 (1819).

¶69 The majority correctly notes that Washington’s framers were familiar with supermajority requirements and specifically employed their use seven times in the constitution. See majority at 823 n.7. Absolutely no evidence exists, however, to suggest that the framers intended those *842uses to be exclusive'. There is certainly no constitutional provision to that effect.

¶70 In The Federalist No. 51, James Madison wrote, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to controul the governed; and in the next place, oblige it to controul itself.” The Federalist No. 51, at 349 (James Madison). Through the initiative process, the voters of this state placed a limitation on the legislature’s power to tax, which fully accords with our state constitution. This court’s interference today unlawfully invalidates a legitimate action of the people of this state under the initiative power. See Const, art. II, § 1 (“[T]he people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.”).

II. The Plain Language of Article II, Section 22 Allows the People To Institute Supermajority Requirements through Initiative

¶71 The majority would rewrite the plain language of article II, section 22 to mean that “any bill receiving a simple majority vote will become law.” Majority at 821. This reading defies logic and assumes the framers were incapable of expressing themselves clearly.

¶72 Article II, section 22 reads, “No bill shall become a law unless ... a majority of the members elected to each house be recorded thereon as voting in its favor.” This section establishes the principle that any vote less than a majority is not enough to pass a bill. Put another way, this language describes the circumstances under which a bill does not pass. The likely frequent problem of delay in arriving from across the state for the legislative sessions was anticipated. Snow-blocked passes were common, travel *843was hard and slow, and the likely impact fell directly on legislators from eastern Washington.

¶73 Had the framers wished to require only a simple majority vote for passage, they could have worded the section to accomplish this. Wording as simple as “Every bill attaining a simple majority shall become a law” would have sufficed. In fact, the framers could have modeled such a simple provision after a number of other states’ constitutions in existence at that time. Notably, Washington’s framers drew from the Indiana Constitution, which contains a provision much more akin to a voting floor and ceiling than does our constitution. See Arthur S. Beardsley, Sources of the Washington State Constitution, in 2011-2012 Legislative Manual 386. Article IV, section 25 of Indiana’s 1851 constitution reads, “A majority of all the members elected to each House, shall be necessary to pass every bill or joint resolution, and all bills and joint resolutions so passed, shall be signed by the Presiding Officers of the respective Houses.” This language has not been amended and remains in Indiana’s constitution today.

¶74 Indiana’s article IV, section 25 stands in stark contrast to Washington’s article II, sections 22 and 32, which read, “No bill shall become a law unless ... a majority of the members elected to each house be recorded thereon as voting in its favor [and] [n]o bill shall'become a law until the same shall have been signed by the presiding officer of each of the two houses.”15 Washington’s language, worded in the negative, describes only the circumstances under which a bill will not become a law. These include not gaining a majority vote and not being signed by the presiding officers. In contrast, Indiana’s positively worded provision provides that all bills gaining a majority shall be signed by the presiding officers. Having derived 7 sections directly from the Indiana Constitution and creating 10 others with marked similarities, the Washington framers could have *844written a positively worded provision similar to Indiana’s article IV, section 25. See Beardsley, supra, at 387. They did not by choice. We must presume that the words were deliberately chosen by the framers to effectuate their desired goals. The voters read and ratified what was written.

¶75 Importantly, the majority makes another logical error in order to reach their rewrite of article II, section 22. They explain, “In other words, if a bill has become law, then it must have been supported by a simple majority vote.” Majority at 821. The next sentence reads, “Under a commonsense understanding, any bill receiving a simple majority vote will become law.” Id. These two sentences present a textbook example of a logical fallacy: they confuse necessary and sufficient conditions. The majority is correct: a simple majority is necessary for the passage of a bill. However, the majority is wrong when it contends that just because a simple majority is necessary, it is also always sufficient. The majority has obviously forgotten abstentions or “present” votes. Furthermore, the confusion of necessary and sufficient conditions defies basic rules of logic and provides support for the majority to misinterpret the plain language of article II, section 22 as written by its founders and ratified by the state. See majority at 821.

¶76 The legislature has itself relied upon the plain language of article II, section 22 to affirm supermajority requirements and has specifically done so with regard to taxes. For example, Initiative 601 (1-601), originally enacted in 1993, which created a two-thirds supermajority requirement for raising taxes, was codified at chapter 43.135 RCW (the Taxpayer Protection Act or TPA). See Brown v. Owen, 165 Wn.2d 706, 712, 206 P.3d 310 (2009). Since then, “ ‘[t]he TPA has been revised, amended, and reenacted many times.’ ” Id. at 713 (quoting Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 292, 174 P.3d 1142 (2007)). The legislature “reenacted and reaffirmed” 1-601 in 1998. Laws of 1998, ch. 321, § 14. The legislature later strengthened portions of the *845TPA, again reenacting and reaffirming it before finally temporarily suspending some of its requirements. Brown, 165 Wn.2d at 713. The majority’s holding today implies that the history of the TPA shows frequent unconstitutional legislative action. Unlike the majority, I presume that the legislators have acted in accordance with their oaths of office to uphold the state constitution. Given the plain language of article II, section 22,1 am confident in this conclusion.

III. The History Surrounding Article II, Section 22 Shows That the Section Simply Establishes a Quorum Requirement

¶77 The majority opinion disregards historical evidence that clearly establishes that the framers intended to create a quorum requirement, not prospectively prevent super-majority requirements. See Proceedings of the Constitutional Convention, Seattle Times, Aug. 9, 1889, at 1. The proceedings of Washington’s constitutional convention were recorded. The members of the convention recorded summaries of motions and votes in the “Minutes of Proceedings.” Court reporters did take shorthand notes, but no appropriation covered the cost of transcribing the shorthand notes and they were destroyed. The Journal of the Washington State Constitutional Convention 1889: With Analytical Index, at vi-vii (Beverly Paulik Rosenow ed., 1999).

¶78 We have previously recognized that in the absence of transcripts, we must rely on the proceedings of the convention as recorded in newspaper articles published at the time. Fortunately, these articles remain as an important tool to ascertain the intent of the framers. See Witters v. Comm’n for the Blind, 112 Wn.2d 363, 385, 771 P.2d 1119 (1989) (“[T]his court has used contemporary newspapers’ accounts of the state constitutional convention to supplement the official minutes since no verbatim record of the convention exists.” (citing Yelle v. Bishop, 55 Wn.2d 286, 293, 347 P.2d 1081 (1959))).

¶79 The minutes of the convention indicate that there were two relevant motions concerning article II, section 22:

*846Motion: Turner moved that the words “majority vote” be . . . stricken.
Action: Motion lost.
Motion: Power moved to insert a provision that a majority of those present could pass a bill.
Action: Motion lost.

The Journal of the Washington State Constitutional Convention 1889, supra, at 536. These motions and rulings were published in both the Seattle Times and the Tacoma Ledger.

¶80 The Seattle Times article from August 9, 1889, describes the first motion: “Turner moved to strike out the provision that a majority vote of the members elected be necessary to pass a bill. The motion was lost and the section passed.” Proceedings of the Constitutional Convention, Seattle Times, Aug. 9, 1889, at 1. This article provides a key piece of information that is otherwise left out of the minutes: namely, that the debate surrounding article II, section 22 was whether the majority of the members elected could pass a bill, as opposed to simply the majority of members present.

¶81 This is further supported by the second motion, to insert a provision that a majority of those present could pass a bill. This motion also failed, and the article II, section 22 controlling today was enacted. When read in this light, article II, section 22 is clearly and unequivocally a quorum requirement.

¶82 That article II, section 22 is a quorum requirement is understandable given the historical context within which the framers were operating. As I noted before, in 1889, the state was still relatively undeveloped, rendering travel difficult and unexpected delays not uncommon — storm- or snow-closed passes have been noted supra. The framers did not want legislators from areas closer to the capitol to be able to pass legislation in the absence of legislators traveling from areas farther away. Because the debate surrounding article II, section 22 related to a quorum requirement, *847no evidence exists to support the majority’s conclusion that the framers intended to prevent the institution of a supermajority requirement.

CONCLUSION

¶83 The majority disregards the importance of individual rights as the centerpiece for the state constitution and our populist roots; illogically construes the plain language of article II, section 22; and fails to consider historical evidence that establishes that the provision simply sets out a quorum requirement. The supermajority requirement created by 1-1053 in no way violates our state constitution.

¶84 If the history of this great state can teach us anything, it is this: the power of the people will prevail. If the legislature passes a tax the people oppose, the people will find a way to repeal it. That “way” may include throwing out legislators or using other article II remedies. In an even more commanding exercise of their power, the people may choose to enact a constitutional amendment requiring a supermajority to pass taxes. The changes in the way our state values property and limits levies followed a similar history. Consistent with the spirit and history of our Washington Constitution, I am sure democracy will carry the day; the voters will not be denied their rights.

¶85 The framers of our constitution, and the electors who ratified it and then added the initiative and referendum as additional ways for the people to control the legislature, would be appalled by this court’s blatant rewrite of our constitution. I agree with our framers and the voters who ratified article II, section 22 and therefore dissent.16

*848Appendix A

Washington State Supermajority Initiative Statistics

Initiative Year Votes for Votes against Pass or Fail

1-1185 17 2012 1,892,969 1,069,083 Pass

(63.91%) (36.09%)

1-1053 18 2010 1,575,655 893,833 Pass

(63.75%) (36.25%)

1-960 19 2007 816,792 777,125 Pass

(51.24%) (48.76%)

1-601 20 1993 774,342 737,735 Pass

(51.21%) (48.79)

The United States Supreme Court’s decision upholding the “supermajority” requirements is discussed infra.

1-1053 passed in 2010 with 1,575,655 (63.75%) votes for and 895,833 (36.25%) votes against. November 02, 2010 General Election Results: Initiative Measure 1053 Concerning tax and fee increases imposed by state government, Wash. Sec’y St. (Nov. 29, 2010 9:49 AM), http://vote.wa.gov/results/20101102/Initiative-Measure1053-Concerning-tax-and-fee-increases-imposed-by-state-government.html; see also infra App. A.

This court is also imposing its agenda over that of the 1,892,969 voters who passed Initiative 1185 in 2012. November 06, 2010 General Election Results: Initiative Measure 1185 Concerning tax and fee increases imposed by state government, Wash. Sec’y St. (Nov. 27, 2012 4:55 PM), http://vote.wa.gov/results/20121106/ Initiative-Measure-No-1185-Coneerns-tax-and-fee-increases-imposed-by-state-gov ernment.html. After its initial adoption in 1993, each time the supermajority requirement has been put before the voters it has passed by a higher percentage of the vote than the last time. See infra App. A.

I also join in senior Justice C. Johnson’s dissent, which correctly analyzes the jurisdiction of this court and the many cases in which we have held partisan political matters are charged to the legislature, the elected governor, and the people, not to the courts.

Raising one obvious and simple solution, if the people decide that their judges are disregarding their constitution, recall should apply to judges as well.

I feel compelled to again point out that it is a majority of the voters who have imposed this limitation on the legislature’s power.

1-1053’s supermajority requirement is not without precedent at the federal level. United States Senate rules permit filibuster by allowing senators to speak as long as they wish unless a three-fifths vote closes the debate by invoking cloture. Standing Rules op the Senate Rule XXII, § 2.

It is not clear how the court’s majority deals with abstention in a close vote.

I also vehemently agree with Justice C. Johnson’s scholarly jurisdictional and historical analysis opposing the majority and have signed that opinion.

November 06, 2010 General Election Results: Initiative Measure 1185 Concerning tax and fee increases imposed by state government, Wash. Secretary St. (Nov. 27, 2012 4:55 PM), http://vote.wa.gov/results/20121106/Initiative-Measure-No1185-Concems-tax-and-fee-increases-imposed-by-state-govemment.html

November 02, 2010 General Election Results: Initiative Measure 1053 Concerning tax and fee increases imposed by state government, Wash. Secretary St. (Nov. 29, 2010 9:49 AM), http://vote.wa.gov/results/20101102/Initiative-Mea sure-1053-Concerning-tax-and-fee-increases-imposed-by-state-government.html.

November 06,2007 General Election Results: Initiative Measure 960 Concerns tax and fee increases imposed by state government, Wash. Secretary St. (Nov. 29, 2007 4:08 PM), http://vote.wa.gov/results/20071106/Initiative-Measure-960-concems-tax-and-fee-increases-imposed-by-state-govemment.html.

November 1993 General, Wash. Secretary St., http://www.sos.wa.gov/elections/ results_report.aspx?e=22&c=&c2=&t=&t2=5&p=&p2=&y= (last visited Feb. 25, 2013).