Category Archives: State Supreme Court

Legislators say Supreme Court should be a party affair

courtcoverThere is enough Supreme Court aversion to go around, even to the state version of the highest court in the land.

Sometime before Christmas, among the multitudes of greeting cards I received was the one you see here on the left. You probably have to click on each image to see them clearly.

My favorite part is at the end of the inside part of the courtinsidecard. “This card is a parody and not actually from Chief Justice Roberts.” It’s a good thing that disclaimer is there, because Roberts could sue and eventually appeal the case all the way to himself.

The message of this card is that the U.S. Supreme Court is secretive and accountable to no one. State lawmakers have a different complaint about the state nine, and they say partisanship is the answer.

The bill is unlikely to get a hearing, according to other news reports and one local legislator. It sends a message, nonetheless. House Bill 1051, sponsored by state Rep. Richard DeBolt, R-Chehalis, and co-sponsored by 15 Republicans and three Democrats, begins with this subtle epistle:

The legislature finds that because the supreme court has decided to act like the legislature and has thus violated the separation of powers, the supreme court should be considered partisan like the legislature.

Why the dig? Because the state Supreme Court has not only ruled that the state is not meeting its paramount constitutional duty in adequately funding education, the court has a bucket of solutions it can choose from should the Legislature’s response to that ruling be deemed inadequate.

Two local legislators, Democrat Sherry Appleton of Poulsbo and Republican Jesse Young of Gig Harbor, are among the co-sponsors.

Young did not respond to requests for comment. Appleton responded to an email saying she believes the bill will not even get a hearing. Asked why why she is backing it, she replied that she isn’t. “It was just a message to make people aware there are three branches of government, and we don’t make constitutional rulings, and they should not tell us how to write budgets.”

Asked what the court should be allowed to do in its role as a check against the state government’s two other branches, Appleton said the court’s job is to determine the constitutionality of laws. “We have a job to do, and they are part of the solution, but not doing the legislature’s business by telling us how to write a budget.  We know full well what we have to do, and we will do it, in spite of the Supreme Court, not because of it.”

Among the solutions the court has discussed should the Legislature fail to meet the court’s definition of “adequate” education funding is one that would void the budget completely, undoing all tax loopholes. It seems unlikely the court would resort to that option first, but should it employ anything there are legislators who believe it would be out of its bounds.

Hugh Spitzer, a constitutional law professor at the University of Washington, said any constitutional revenge by the Legislature would require near unanimity of the lawmaking body, which doesn’t seem likely. More within reach is legislators stalling state law fixes requested by the courts.

Legislators have threatened the court financially in the past, but that seems unlikely, too. Punishing the courts financially “punishes the public if the public doesn’t have access to the courts,” Spitzer said. Furthermore, in a pinch the Supreme court could order funding from the state. It never has, but it could.

Washington would not be the only state with partisan judges and it wouldn’t be the first time the state had such a setup.

According to Judgepedia, seven states elect Supreme Court justices in partisan elections. In two states the justices are nominated in party primaries or conventions and other states involve the parties in lower court assignments.

Spitzer said Washington judges were elected in partisan elections until 1907. Partisanship came back came back a few years later when Republicans were upset that a Democrat had been elected in a non-partisan election. GOP legislators managed to put two more seats on the bench, got two of their own elected and then made the judge races non-partisan again.

Maybe this Legislature ought to consider doing that. If they did it during presidential election years, when all our televisions are affixed to Fox News and MSNBC, we might not notice. The newspapers would cover it, but who reads those anymore?


McCleary responses range from compliant to defiant

You might have read the AP story about legislative pushback coming from both sides of the aisle on the state Supreme Court’s McCleary decision. Republican Sen. Michael Baumgartner has a bill that would shrink the court from nine members to five. Part of it is a response to what he sees as judicial overreach, but he also said it would save money.

During AP’s Legislative Preview earlier in January I wondered if state Sen. Mark Schoesler of Ritzville was chafing at the McCleary decision follow-up when he said, “If money were the key to education we’d all long for our kids to be in the Washington, DC schools.” If we were not in the midst of a period in which the court had demanded the Legislature spend more on schools, it would be just another political statement. Coming at this time, however, it seemed like it might be more than partisan posturing.

Jim Hargrove, a Democratic state senator, is also on the record saying he sees “separation-of-power problems” with the court’s approach.

Doug Cloud, who was one of the Republican candidates to replace Jan Angel in the House, said he sees problems with the court’s actions.

If legislators, almost all of whom say they will allocate more money to education regardless, decide to challenge the court’s authority, it could mark a precedential moment in Washington history.

Meanwhile, Gov. Jay Inslee is proposing spending $200 million more from this budget on education, including $74 million that would give teachers a 1.3 percent raise. It would be the first cost-of-living raise since 2008, despite the fact that voters approved annual COLAs in 2000. The governor also cited not just the decision, but the court’s statement that the Legislature was not moving fast enough to get to full funding by 2018.

The governor’s press release follows:
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Sanders: I did not “heckle”

When I read on an Olympian blog that Washington Supreme Court Justice Richard Sanders didn’t heckle U.S. Attorney General Michael Mukasey during a Federalist Society speech in which Mukasey collapsed, I read that to mean that Sanders wasn’t the one yelling “Tyrant.” You can hear it at this link, once you get to 17:28. The collapse happens much later and if that’s all you want to see you can see it quickly on YouTube.

If you go to the blog I linked, you’ll read that the speculation that it was Sanders began on Fox News, then Michelle Malkin wrote that she hoped it wasn’t Sanders, because “I knew, respected, and greatly admired Justice Sanders when I worked at the Seattle Times in the 1990s.”

What Sanders was reported as telling the Olympian’s Adam Wilson was, “As to that, I don’t have any comment. But I wasn’t there when he collapsed. I heard it on television the next morning, I was very sorry to hear it.”

In that quote he’s not saying he didn’t say it, he’s saying he wasn’t there when Mukasey collapsed, which, given how long after the “Tyrant” yell Mukasey’s collapse was, is entirely plausible.

Nonetheless, Sanders now admits he was the guy. In a statement he released he wrote, “The program provided no opportunity for questions or response, and I felt compelled to speak out. I stood up, and said, ‘tyrant,’ and then left the meeting. No one else said anything. I believe we must speak our conscience in moments that demand it, even if we are but one voice.”

He does not characterize it as heckling. You can read the entire comment below.

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747’s Demise Not Changing Bremerton’s Plans

This item is also posted on the Bremerton Beat blog.

On Wednesday’s Bremerton City Council agenda is one item that for the past five years has been a pro forma event, the passing of the 1 percent property tax levy increase.

This year, however, the city has all the legal right in the world to throw upcoming election margins to the wind and grab 6 percent. Council members appear in no mood to do that, heeding Gov. Chris Gregoire’s plea that local governments not rush for the cash in light of the overturned Initiative 747.

The council will also effectively lower its business and occupation tax by increasing the exemption from $40,000 to $60,000. This is part of the city’s intended move to eventually eliminate the tax completely to give businesses something of a break and make the city competitive with the county.

747 Supreme Aftermath

In covering Thursday’s State Supreme Court decision, which overturned Initiative 747’s 1 percent property tax cap, the most important question we wanted to answer was whether your taxes were likely to go up beyond the former standard. In the short term it would appear they won’t. There are 43 different taxing districts in the county and we haven’t found one that would definitively say it would go for more than the 1 percent. Even County Commissioner Josh Brown’s complaints amounted to little more than calling for a discussion of “systemic solutions.” His unwillingness to respond to how the county would respond could mean something and gives us all reason to watch Port Orchard closely, but there’s been no change so far.

Kitsap County Assessor Jim Avery provided some more numbers of interest on this issue. Before 747, taxing districts serving fewer than 10,000 people had the straight 6 percent standard. Districts above the 10K mark, however, were limited to inflation or 6 percent, whichever was less. They could get the 6 percent, however, by officially declaring “substantial need” and passing it with a majority-plus-one vote. In Bremerton it would have meant a 6-3 vote. In Poulsbo it would have to be 5-2.

I’m treading into Bob Meadows territory for the next two paragraphs. I welcome his correction.

If a taxing district didn’t levy the full amount one year, it could bank it and draw it in the future. Since 747’s limits set the rate at 1 percent, smaller districts built up a bank of 5 percent a year. The 30 percent number gets thrown around, but it would be more because it compounds from one year to the next. According to my math, it’s about 35 percent. In the worst-case scenario, it means a taxing district that charged you $100 in 2001 and planned to charge you $106.51 in 2008 could instead levy $141.85, or thereabouts. It’s more complicated than that, but that’s the idea.

For the bigger districts the “very rough” number is 7.24 percent, according to Avery. That’s the sum of the annual inflation numbers, minus the 1 percent each year.

However, using the same formula I used before, it means a district that charged you $100 in 2001 and planned to charge you $106.51 in 2008 could instead levy $117.21. If the district declared a “substantial need” need this year, that number goes up about $4.

These are all vagaries, of course, because they don’t add 1 percent directly to your property and no one has announced anything other than 1 percent yet.

Chris Dunagan reported:

“But the 2008 budget could still be out of balance by $2 million without staff cuts.”

Avery said the county’s estimated banked capacity is about $1.8 million.

The long-term impact, however, will depend largely on the Legislature. In our calls to local legislators the support for the 1 percent cap was pretty strong. It wasn’t unanimous, but it was strong. Tim Eyman kind of chuckled when I told him about my conversations with local legislators. He said the only legislator who mattered was House Speaker Frank Chopp. “Frank Chopp decides everything,” he said. The speaker has not commented.

The governor called for “a cap,” which doesn’t mean 1 percent. As I wrote in my story, Eyman said he’d consider crafting another, more restrictive, initiative if the Legislature does anything other than put 747’s limits back in place.

The 5-4 court decision is based on the fact that the ballot measure told voters they were dropping the cap from 2 percent to 1 percent. In coming to that conclusion, the majority cited a previous case, Washington Association of Neighborhood Stores v. State of Washington, which included:

“Citizens or legislators must not be required to search out amended statutes to know the law on the subject treated in a new statute. Under article II, section 37, a new statute must explicitly show how it relates to statutes it amends.”

The majority took that statement and determined:

“Thus, a significant purpose of article II, section 37 is to ensure that those enacting an amendatory law are fully aware of the proposed law’s impact on existing law.”

There was included an argument in another case where the court upheld a 1994 law that amended a 1993 law that was later ruled unconstitutional. The majority reasoned that the earlier law had not yet been ruled unconstitutional, so the amendment could stand. In the case of 747, when voters went to the polls, the law they were amending in the ballot, I-722, had already been struck down.

So in parts of the ballot 747 told you that you were reducing the cap from 2 percent to 1 percent, when in fact you were reducing the cap from 6 percent to 1 percent.

“Here, if a voter simply read the text of the initiative, he or she would have understood that I-747 reduced the property tax levy limit from two percent to one percent. Simply put, a voter reading the text of the initiative would have perceived a much smaller impact on government coffers than would actually occur under I-747, a fact the dissent ignores. The text of the initiative misled voters about the substantive impact of the initiative on existing law.”

The majority argued that it’s the information on the ballot measure that matters and dismissed the argument that the voters’ pamphlet had the correct explanation. But the majority addressed the pamphlet and said it contained some of the same incorrect information than was on the ballot, so the pamphlet was ambiguous.

The court acknowledged that this kind of problem means those who would launch initiatives would have to wait until the courts had ruled before filing, but that waiting was better than having an eventually unconstitutional law on the ballot.

“Although we presume the validity of initiative measures and respect the right of Washington’s citizens to exercise this important privilege, article II, section 37 was designed to protect voters and legislators from confusing or misleading information and to maintain the integrity of the law-making process. Thus, where we must weigh delay for initiative proponents against constitutionally prescribed clarity for the voters, the constitution must prevail.”

The four dissenters responded:

“No reasonable argument can be sustained that voters were in any way misled or confused by the effect of I-747, which expressly and was specifically aimed at lowering the tax growth to one percent. The majority seems to suggest that the voters are unable to think or read for themselves, when in fact our democratic process is based on the assumption that voters do in fact read and understand the impact of their votes.”

Others have answered another question I’ve been asked a lot. Who were the judges?

The dissenters were Charles Johnson, Gerry Alexander, Richard Sanders and Tom Chambers.

The majority were Bobbe Bridge, Barbara Madsen and Susan Owens, joined by two pro tems, Stephen Brown and Teresa Kulik.

The pro tems were there because Justice Mary Fairhurst was in the AG’s office when it defended 722 and James Johnson helped with 747. They recused themselves from this issue.

The response I’ve seen in the papers and heard on the radio have almost all come from the outraged, people who argue, “The court thinks we’re stupid.” I agree that voters probably knew what they were doing. I would speculate that if the ballot measure had been worded correctly it would have changed so few votes as to not matter.

But I also wonder why there are so few people arguing that perhaps the court is right that the one place we should demand absolute accuracy is on a ballot or in a law.

I think the answer starts with what Bob Meadows wrote in a story comment: “The majority opinion shows why cynics say that supreme court opinions often start with a desired result and work backward to try to rationalize that result in the words of the opinion.”

It isn’t just the cynics who say it. “You must remember one thing. At the Constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reason for supporting our predilections.” — Charles Evans Hughes, Chief Justice, US Supreme Court (1930-1941)

Frankly, you could argue that sentiment applies not only to the justices, but to many who have offered an opinion on their decision.

747 Is No More

In response to the state Supreme Court’s decision overturning I-747, Gov. Chris Gregoire sent the following statement:

“I know that voters must be disappointed by the court decision to overturn I-747. As we know, voters approved I-747 by a wide margin in 2001.

“As Governor, I am asking the state, counties, cities and all other taxing districts to assure me that they will not increase property tax levies for their upcoming budgets as a result of the court decision. In addition, I will be asking the Legislature, in January, to work with me to thoughtfully reinstate a property tax cap.

“We heard loud and clear on Tuesday evening that voters are concerned about their tax burden. I believe that it is our responsibility to move quickly, recognizing taxpayers’ concerns and reinstating the will of the voters. “

Joe Turner from the News Tribune in Tacoma points out that “a cap” doesn’t mean the governor wants “a 1 percent cap.”

One of the things I asked Eyman this morning is the Legislature responds with anything other than the exact limits of 747, would he then launch a new initiative for 2008. Eyman answered:

“Sure, but it will only be more restrictive.”

He said legislators and others who want something higher don’t get that the 1 percent cap is the compromise position. He said there are a lot of taxpayers who want property tax reductions and local government types who want more than 6 percent per year.

All this stems from the State Supreme Court agreed with a lower court decision that Initiative 747, which limited local government property tax increases to 1 percent plus new construction, was unconstitutional.

The 5-4 decision means local governments can, if they’ve got the political guts/nerve to do it, increase property taxes by 6 percent next year. Tim Eyman, who authored the initiative, said they also could go back all the years the 1 percent law was in place and collect the 5 percent for each year they didn’t get while an unconstitutional law was in place.

I spoke to several legislators. Eyman said House Speaker Frank Chopp, D-Seattle, is the only one who matters and he believes Chopp will get the limits of 747 back into law.

State Rep. Sherry Appleton, D-Poulsbo, said she hopes the Legislature doesn’t jump in as the “hero” on this the way it did when Initiative 695, which reduced car tab fees to $30, was ruled unconstitutional.

“What my hope is that the Legislature won’t just jump in without thinking about it,” she said.

She said the court’s decision was good for cities and counties, “because they’ve been suffering with that 1 percent limit.

She acknowledged that with the governor up for re-election and with her party so far in control in the Legislature, the party would be risking their political lives by doing anything other than taking its own action to reinstate the 1 percent standard.

“That’s true. Part of why people are elected is to show courage and leadership,” she said. “This is one time where we have to be very careful. I don’t think it’s an easy thing to do.”

State Sen. Derek Kilmer, D-Gig Harbor, said he would support legislation that would put 747’s limits back in place.

“There is a legitimate concern about property taxes and I’m sensitive to make sure that people who’ve worked hard and play by the rules don’t get taxed out of their homes,” Kilmer said.

The senator said state legislators can help local governments at the same time by “not jamming” them with new rules without giving them the means to enforce them. ”If there’s a proposal before the legislature that we want local government to do something, it should be important that we provide the funding to do it,” he said.

Bremerton City Councilman Will Maupin said he doesn’t think the decision will have any impact on his city’s 2008 budget process. The council has on its agenda Wednesday a resolution to set the 2008 property tax levy in accordance with 747.

“I would be very surprised at this point that we would want to do anything different than that,” he said.

He said the news probably arrived too close to the city’s budget deadlines. “Besides that, we just got a clear message from the people that they’re really unhappy with their tax situation,” he said.

Bremerton voters Tuesday overwhelmingly turned down the city’s request for a property tax hike to beef up park improvements. “With the mood people are in right now I don’t see us doing anything other than the 1 percent increase,” he said.

In an e-mail Eyman sent this morning, he wrote:

“We’re in for absolute chaos. For six years, local governments (counties, cities, ports, library districts, fire districts, cemetary districts, parks districts, etc.) have been held to a 1% levy each year. Since I-747 no longer exists, local governments now suddenly have the unused taxing authority that they’ve accumulated over the past six years (5% per year — 6% instead of 1%). That means that each local government now has the power to jack up property taxes 30% this fall without a vote of the people (I-747 required voter approval — now that I-747 is overturned, voter approval is no longer be required). Every local government knows that if they don’t take advantage of the situation and unilaterally increase taxes using this unused taxing authority, the Legislature in 2008 might take that authority away.”

I also got comments from State Reps. Christine Rolfes and Kathy Haigh, who both like the 1 percent cap, state Sen. Phil Rockefeller, who is open to some wiggle room in whatever happens in Olympia and Bremerton Mayor Cary Bozeman. I’ll post those later and will continue to update this entry.

Court Decisions

Read this story by the Olympian on the state Supreme Court’s decision, which many of us characterized as “Lying is OK” in political campaigns. It may have bearing on another case in which the Supreme Court 5-4 that Bainbridge Island’s shoreline moratorium ran afoul of the law.

Schellberg said he was “a little intrigued” by Chief Justice Gerry Alexander’s concurring opinion in the case and hoped he would elaborate.

Alexander provided the fifth, or majority, voice in the case that pitted former Green Party candidate Marylou Rickert of Shelton against the PDC, which fined her $1,000 after deciding she deliberately made false statements about the voting record of state Sen. Tim Sheldon in his 2002 re-election campaign.

The Court of Appeals rejected the finding and the Supreme Court agreed, but Alexander and the other four justices in the majority went too far “in concluding that any government censorship of political speech would run afoul of the First Amendment to the United States,” Schellberg said.

“The United States Supreme Court has ruled that defamation is not protected … The government, thus, may penalize defamatory political speech,” Alexander added in his half-page-long opinion.

In the Bainbridge case many stories would lead you to believe the city was absolutely wrong in doing the shoreline moratorium. In reality, that was the opinion of four of the justices. The fifth, Tom Chambers, voted against the city because the moratorium went too long. Christopher Dunagan pointed out the distinction in Chambers’ argument.

Breaking the 4-4 tie was Justice Tom Chambers, who agreed with Fairhurst that moratoria are permitted under the law, but he expressed outrage at the length of time that Bainbridge Island’s moratorium continued.

“I write separately in part to state in unequivocal terms my view that the city of Bainbridge Island’s year after year renewal of a shoreline building permit moratorium was an act of stagnant municipal government,” he said. “Those who govern fail the public’s trust when they are unwilling, unable or simply neglect to roll up their sleeves, gather the information necessary and make the tough decisions they are elected to make.”

So, calling all lawyers, does Chambers’ acceptance of moratoria in his otherwise rebuke of the island mean that moratoria are actually permitted?

Lying OK in Political Ads

The Olympian has the story about the state Supreme Court’s 5-4 decision that strikes a law that made lying in campaign ads illegal.

The court sided with former Green Party candidate Marylou Rickert of Shelton, whose brochure included statements about Sen. Tim Sheldon that were judged untrue by the state Public Disclosure Commission.

The case was decided on a split 5-to-4 ruling. Justice Jim Johnson wrote the majority opinion, which said the state law was unconstitutional.

“The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Johnson wrote.

Justice Barbara Madsen wrote the dissent that said the majority ruling “is an invitation to lie with impunity.” She wrote that it was wrong to say “oppressive government regulation is at issue in this case.”

“When cases decided by the United States Supreme Court are properly applied, it is obvious that (the challenged law) infringes on no First Amendment rights,’’ Madsen wrote in a 30-page decision supported by Justices Bobbe Bridge, Tom Chambers and Mary Fairhurst.