This November we vote on an initiative to repeal the Legislature’s income tax on millionaires — Initiative 645. Our state constitution not only “reserves” the people’s right to initiative and referendum but protects that right from legislative interference. But that requires a judiciary willing to enforce those guarantees.
While much of the constitution is a “delegation” of power to the Legislature or executive, this was a “reservation” of power in the people, the ultimate source of political power. The constitution stresses this power of the people is “independent of the legislature” while recognizing “This section is self-executing, but legislation may be enacted especially to facilitate its operation.”
Thus, the ratifiers recognized the natural enemy of the initiative and referendum was the Legislature and anticipated all manner of legislative attempts to undermine it. As our late great Supreme Court Justice Hugh Rosellini wrote in opposition to a legislative attempt to undermine the initiative power:
“The people have declared in their constitution that the legislature may act with regard to the initiative process, but only for the purpose of oiling the wheels. When the legislature enacted this provision, it set down the oil can and picked up the monkey wrench.”
But the Legislature has picked up the monkey wrench once again. And our courts let them get away with it.
In 2022 the Legislature passed the “Public Investment Impact Disclosure” law. That statute was designed to adversely impact popular attempts to repeal or limit taxes through the initiative process. The statute mandates a statement in the middle of the ballot title passage of the initiative would “decrease funding” for the three largest expenditures. Hence without judicial intervention the following will appear on the November ballot:
“Initiative Measure No. IP26-645 concerns state and local taxes.
“This measure would repeal a 9.9% tax on annual individual income over $1,000,000; prohibit taxes measured by individual income and taxes on individual income; and define “income.” This measure would decrease funding for public K-12 education, higher education (including universities and community colleges), and human services (primarily healthcare).
“Should this measure be enacted into law?” Yes or No?
The problem with the public impact disclosure statement (and the statute that requires it) is it is false and deceptive because (1) the “current state budget” would not be reduced and (2) the effect of an increase or decrease of revenue for the general fund does not necessarily increase or decrease funding for any particular program — such a future legislative decision is unknown and unknowable.
This deceptive language certainly prejudices the chances of initiative passage — the obvious intent of the Legislature. Such is demonstrated by a poll conducted by Change Research showing ballots with such a statement, compared with ballots without one, lose 10% to 15% support.
Suits filed to challenge the disclosure language and the constitutionality of the statute asserted it did not “facilitate” the initiative process but undermined it, violating the state constitution. These claims failed in the trial court although in a related proceeding Thurston County Superior Court Judge Anne Egeler held the challenged language “indicating how funds in the general fund will be allocated in the future would be both inaccurate and misleading to the voters.”
Citizen activist Arthur West appealed to the Supreme Court. Initially his emergency motion for a preliminary injunction was turned down by unelected Supreme Court Commissioner Michael Johnston.
West then appealed to the court’s elected justices. They were evenly divided 4-4: Justices Charles W. Johnson, Sheryl Gordon McCloud, G. Helen Whitener and Theo Angelis voted to bar the language from appearing on the ballot; Justices Debra L. Stephens, Steven C. González, Salvador A. Mungia and Colleen M. Melody voted to deny West’s request. One justice did not participate, reducing the nine-member court to eight, meaning a tie vote would affirm the commissioner’s denial of the requested injunction.
Never explained was the court’s failure or refusal to appoint a judge pro tempore to break or avoid a tie, the appointment of whom is encouraged by the constitution, statute and court rule. That failure allowed an unelected commissioner to, in effect, control the outcome of a case involving the constitutional rights not only of West, but all voters — in a proceeding to review his own ruling.
All of which brings not an oil can but a monkey wrench to the ballot.
