Judge to weigh legality of Eyman’s tax-cut ballot measure

OLYMPIA – The legality of Tim Eyman’s latest tax-cut ballot measure will be argued in a King County courtroom Tuesday, the first round in a battle the state Supreme Court might ultimately decide.

Superior Court Judge William Downing will hear arguments on the validity of Initiative 1366, which slashes the sales tax by a penny in mid-April unless lawmakers put a tax-limiting constitutional amendment on the ballot for November.

Attorneys said they anticipate a ruling within a matter of days, after which the losing side would most likely appeal directly to the high court.

Eyman, a Mukilteo resident, is confident of victory.

“I’m optimistic. I really think the court will dismiss the lawsuit and the Legislature will have to choose the path they want to take,” Eyman said. “The 2016 Legislature is not going to be saved by the courts.”

Initiative 1366 passed with 51.5 percent of the statewide vote in November.

It reduces the 6.5 percent state sales tax to 5.5 percent on April 15 unless lawmakers place a constitutional amendment on the November ballot which, if passed, would require a two-thirds legislative majority to raise taxes.

Opponents, who sued in late November, contend the measure exceeds the scope of state law that bars ballot measures from addressing multiple unrelated subjects.

Attorney Paul Lawrence contends the court needs to invalidate the measure because I-1366 contains two subjects and uses one, the sales tax cut, to achieve the second, the constitutional amendment.

Also, initiatives cannot amend the state constitution, as I-1366 is constructed to do, said Lawrence, who represents a group that includes two Democratic lawmakers and the League of Women Voters of Washington

“I-1366 is an improper end-run around the constitution that would have serious negative consequences if upheld, not only because of the fiscal havoc it will cause, but more significantly for the damage it would do to the proper functioning of government here in Washington,” he wrote in a brief filed with the court.

But the state Attorney General’s Office, which by law must defend voter-approved ballot measures, counters there’s nothing illegal about I-1366.

It does not itself amend the constitution and contains only one legislative act, the sales tax cut, according to the agency’s brief.

“Simply because Plaintiffs disagree with the policy choice that the voters made — to reduce the state sales tax rate unless a contingency occurs — that does not make I-1366 unconstitutional or an illegitimate exercise of the people’s initiative power,” wrote Deputy Solicitor General Callie Castillo in the brief.

“Nothing in the state constitution suggests that the people cannot express through an initiative their policy desire for a constitutional amendment,” wrote Castillo, who will argue the case on Tuesday. “Plaintiffs’ conclusion that the original idea or motivation for a constitutional amendment can only come from the Legislature itself, and not from the people, is absurd.”

Meanwhile, as lawyers debate the measure in King County, lawmakers are trying to figure out how to respond during the 60-day legislative session that is under way.

If the sales tax is lowered, the state will take in several hundred million fewer dollars in this budget cycle. That could force lawmakers to hold a special session to trim spending in numerous programs and cut services.

Republican lawmakers, who embraced I-1366, say the budget concerns can be avoided by putting a constitutional amendment on the ballot. A Senate committee plans a hearing Thursday on possible language for such a measure.

But it takes a two-thirds majority of the Legislature to place such a measure on the ballot, and Democratic lawmakers won’t go along. They are convinced the Supreme Court will toss out I-366 and are prepared to deal with the consequences if they are wrong.

“Yes, I think that’s where our members are,” House Majority Leader Pat Sullivan said in a TVW interview on Thursday.

That adds a little intrigue to Tuesday’s court proceedings, said Jason Mercier, government reform director for the Washington Policy Center, a business-oriented think tank that has long endorsed a public vote on the supermajority requirement.

“If you have a bench ruling agreeing with the attorney general brief that 1366 is constitutional, that would probably put more pressure on legislators to give more attention to the next steps,” Mercier said. “At the end of the day, this really needs to be settled once and for all at the ballot box.”

Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com.

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