Resolution Challenging the constitutionality of Initiative 1366

(drafted per request of King County Democrats’ Chair Rich Erwin, for presentation to KCDCC)

WHEREAS Washington voters, on November 3, 2015, narrowly adopted Tim Eyman’s Initiative 1366 (“I-1366”), a ballot measure containing serious flaws that have led to a substantive challenge of its validity under our State Constitution, and that challenge is now pending in King County Superior Court; and

WHEREAS the fundamental purpose of I-1366, as demonstrated by its text, its title (“2/3 Constitutional Amendment”), and its promotional advertising, was and is to initiate amendment of the State Constitution to require (1) either a two-thirds legislative supermajority or a public vote on any measure that “raises taxes,” and (2) legislative approval of any increase in state fees; and

WHEREAS use of an initiative to commence a constitutional amendment process is beyond the scope of the limited legislative power conferred upon the people by Article II, Sec. 1 of our State Constitution; and

WHEREAS Article XXIII of our State Constitution prescribes the sole method for its amendment; namely, by a proposal initiated by a two-thirds vote in each house of the State Legislature and subsequently ratified by a vote of the people; and

WHEREAS I-1366, taken as a whole, would turn that prescribed method on its head by impermissibly initiating a specific mandatory amendment by a vote of the people on I-1366 itself, and

WHEREAS I-1366, by providing for both a sales tax decrease and contingent referral of a constitutional amendment that would require both supermajority approval of any tax increase and legislative approval of any fee increase, violates the State Constitution’s Article II, Sec. 19 “single-subject” requirement in both respects; and

WHEREAS I-1366 is also unconstitutional in constraining the power of our Legislature to act, by requiring it to choose between an unsupportable reduction in taxes needed to support public education, and the unconstitutional submission of a supermajority amendment that would empower a 34% minority to exercise negative control over each and every proposed tax increase; and

WHEREAS our State has already been found in contempt of court for failing to adequately fund public education as required by Article IX of the State Constitution (McCleary v. State, Order dated 9/11/14), and remains in that contumacious status even today (see, e.g., McCleary Order dated 8/13/15); and

WHEREAS any action by the Legislature to reduce present tax collections, or to refer for voter approval a constitutional amendment requiring a two-thirds legislative supermajority for approval of any tax increase, would exacerbate the State’s present contempt-of-court status; and

WHEREAS a judicial failure to invalidate I-1366 would make our courts complicit in the State’s ongoing unconstitutional failure to adequately fund public education, and thereby undermine their ascription of responsibility to other entities of State government;

THERFEFORE, BE IT RESOLVED that we urge our courts, at each and every level, to recognize the unconstitutionality of I-1366 and rule it forthwith null and void.

Originated by Dean Fournier, KCDCC Resolutions Committee

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