The Washington Supreme Court Holds That I-1053 Is Unconstitutional

By Garry Fujita

The Decision is in:  The Washington Supreme Court holds that I-1053 is unconstitutional, but did the Court properly construe Art. II, Sec. 22 of the Washington State Constitution?

Five times, in I- 601, R-49, I-960, I-1053 and I-1185, the Washington voters limited the legislature’s ability to increase taxes, requiring approval by the 2/3 majority standard.  The critical question in the case was:  What does Art. II, Sec. 22 of the Washington Constitution mean?  That provision says:

SECTION 22 PASSAGE OF BILLS. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

In the opinion, the Court scrutinized two critical words — “a majority”.  Does the plain meaning of these two words really mean three words:  “a simple majority”? The Court’s majority answered yes.  A single dissenter (there were two more dissenters, but they dissented on the point that there was no judicable controversy) answered no.  Both the majority and the single dissenter focused on constitutional history but came to different conclusions about whether “a majority” actually meant “a simple majority.”

Both opinions explored interesting historical considerations.  This was appropriate because both the majority and the one dissenter relied on the well-established legal premise that if there is an ambiguity in the words, then the court should resort to external sources to determine the intent of the words.  The majority lays down the entire principle:

Determining whether the constitution prohibits a particular legislative action requires the court to first examine the plain language of the constitutional provision at issue. Wash. Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470,477, 90 P.3d 42 (2004). The court gives the words “their common and ordinary meaning, as determined at the time they were drafted.” !d. (citing State ex rel. 0 ‘Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969)). The court may look to the constitutional history for context if there is ambiguity. Id.

League of Educ. Voters v. State, Slip. Op., No. 87425-5, p. 13.

Was it really necessary to resort to intent, history and populace values at the time the provision was adopted to interpret these two words?  It would be if there is ambiguity in the words used.  Is there ambiguity in these two words?

A case can be made for the position that there is no ambiguity in “a majority.”  Let’s take “majority” first.  According to Merriam-Webster’s online dictionary, majority means:

3. a : a number or percentage equaling more than half of a total <a majority of voters> <a two-thirds majority>  So, majority means “a number or more than half of a total.”  There is no limitation as to how much more than half is necessary.  Is 51% more than half?  Yes, it is.  Is 66.6% more than half?  Yes, it is.  Then, it is true that either 51% or 66% meets the definition of “majority.”

The review standard is to apply the “ordinary and common” meaning.  Is there anything in “a majority” that mandates a simple majority?   To answer that question, we next turn to the article “a”.  What does the indefinite article “a” mean?  The Washington courts have considered indefinite articles, explaining:

We agree with the Douglas court that the legislature unambiguously defined the unit of prosecution in RCW  9A.56.160(1)(c) as one count per access device by using the  indefinite article “a” in the clause “a stolen access device.” Webster’s provides the following definition for “a”:

1–used as a function word before most singular nouns other than proper and mass nouns when the individual in question is undetermined, unidentified, or unspecified …; used with a plural noun only if few, very few, good many, or great many is interposed.

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1 (2002). Thus, because the word “a” is used only to precede singular nouns except when a plural modifier is interposed, the legislature’s use of the word “a” before “stolen access device” unambiguously gives RCW 9A.56.160(1)(c) the plain meaning that possession of each stolen access device is a separate violation of the statute.

State v. Ose, 156 Wash.2d 140, 146, 124 P.3rd 635 (2005).  In Ose, the defendant was charged with 45 crimes but argued that the statute meant that one occurrence of possessing several stolen devices constituted one chargeable crime, not 45.  The Court concluded that the indefinite article “a” modified “stolen access device” to mean possession of each device constituted one crime.

How would that rationale affect the constitutional analysis of I-1053?  One could argue that “a” majority means “an undetermined, unidentified, or unspecified” majority.  In other words, the framers did not care what the extent of the majority approving the law might be, as long as it was a majority.  It is reasonable to conclude that a constitutionally valid majority could be simple, 2/3 or unanimous, because the indefinite article “a” means that the term majority is “undetermined, unidentified, or unspecified.”  Whether such greater majorities are good policy or not (there’s plenty of room in another post to discuss the policy merits) is not the Court’s concern so long as the words that it interprets have been given their plain meaning, absent ambiguity in the words used.

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