I-1053: To Challenge or Not to Challenge?

On September 25, 2012, the state Supreme Court heard arguments on the constitutionality of the voter-approved requirement (aka Initiative 1053 and its predecessor, Initiative 960) that the legislature must approve tax increases by a two-thirds majority.  Unless the state Supreme Court concludes that there is no judicable controversy, we should know the fate of the two-third vote requirement in a few months.

We do not express an opinion on whether the provision is constitutional, but the argument did get us wondering about whether there should be a judiciable controversy surrounding one of the issues in the case.


The plaintiffs brought the action under the Uniform Declaratory Judgment Act.  It argued that all of the act’s requirement’s had been satisfied.  Thus, the court had a judiciable controversy that it should decide under the act. One of several issues related to judicial controversy was whether there were clearly injured parties in the litigation.

Counsel explained that several injured parties existed citing about a dozen individual house legislators (not the legislature) were not able to be effective law makers, resulting in injury to them.  They were injured when their bills failed because they lacked support by a supermajority.  The state responded that these arguments were based on speculation and conjecture.  Also, counsel argued to the court that two teachers who lost jobs were injured parties because there were insufficient funds to pay them.  The state responded that the record did not establish that they lost their jobs due to the supermajority requirement, in that the school district’s “reduction in force” notice attributed the action to “an adverse financial situation … as a result of several factors.”  The injuries, the state stated, were also speculation and conjecture.


The state Supreme Court should contrast that standing argument with U.S. Oil Trading, LLC v. State, Office of Financial Management, 159 Wash.App. 357, 249 P.3d 630 (2011) (pet. for rev. denied, 171 Wash.2d 1025, 257 P.3d 665 (2011)).  In that case, The taxpayer brought its action under common law tort law, and that may be a sufficient legal distinction between it and the League of Education Voters.  Nevertheless, the issues seem related in a logical manner.

The taxpayer contended that a change in the tax law should have been approved by a two-thirds vote in the legislature.  The Office of Financial Management and the Department of Revenue, according to the taxpayer, had a duty to it to assure that the legislature was advised that the amendment would raise taxes (which they did not do), and their failure to do so caused a violation of the two-thirds approval requirement. The taxpayer contended that the legislature’s failure to follow the two-thirds vote requirement resulted in actual harm as well because plaintiff paid a greater amount of tax than it would have had the amendment not passed.

The Court of Appeals rejected the taxpayer’s case under the Public Duty doctrine, relying on the Initiative 960’s language that referred to the “People” not to “taxpayers.” The court held: “The intent of this section is to benefit ‘the people,’ not individual taxpayers. We find no legislative intent to create a duty toward Trading or other individual taxpayers in this section of I-960.”  Id. at p. 365, 634.

The Logic of Existence

Putting aside the positive or negative policy value of the two-thirds vote requirement, at 40,000 feet, it seems odd that a taxpayer who is directly affected by the failure to follow that two-thirds vote requirement is owed no duty by the government to assure that the two-thirds vote is followed but about a dozen legislators and two teachers who lost their jobs because there is insufficient tax have standing because the legislature is presumed to have followed the two-thirds vote requirement.  It would be logical that standing either exists or does not exist in both scenarios.

If you are interested in hearing the argument, you can find it at TVW:


If you are interested in the briefing, you can find them at: http://www.courts.wa.gov/appellate_trial_courts/coaBriefs/index.cfm?fa=coabriefs.briefsByHearingDate&courtId=A08&year=2012#a20120925

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