Based on a state brief in the roll-your-own cigarette “tax” lawsuit being heard today at 2 p.m. in Franklin County, lawmakers may be able to ignore a law without first repealing it by passing a new law. It looks like this means that even if the Supreme Court were to eventually settle the constitutionality of the supermajority requirement for tax increases, if a future Legislature were to pass a tax increase in violation of that law without first repealing it, such action would appear to be deemed appropriate by the Attorney General’s Office. This novel argument epitomizes the need for the people to be provided the opportunity to vote on constitutional supermajority vote requirements for tax increases.

Consider the following argument from the state’s brief (emphasis added)

“Even if this Court were to conclude that the Cigarette Machine Legislation raises taxes for purposes of RCW 43.135.034, the statutory two-thirds vote requirement cannot, by itself, invalidate the Cigarette Machine Legislation. The Washington Supreme Court has explained that one enactment, even an enactment by initiative, cannot bind future legislatures. Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 174 P.3d 1142 (2007). In Farm Bureau, the plaintiffs argued that a bill enacted by the 2005 Legislature exceeded the fiscal year expenditure limit established under the terms of Initiative 601 and therefore was invalid until it complied with a voter approval requirement adopted in the initiative. Id.

The Court upheld the legislation, reasoning that it is a fundamental principle of our system of government that each duly elected legislature is fully vested with the plenary power to enact laws, except as limited by our state and federal constitutions. Farm Bureau, 162 Wn.2d at 290. “No legislature can enact a statute that prevents a future legislature from exercising its law-making power. . . . To reason otherwise would elevate enactments of prior legislatures to constitutional status and reduce the current Legislature to a second-class representative of the people.” Id. These principles are likewise true for initiatives because when the people pass an initiative, they are exercising a legislative power that is coextensive with the Legislature’s. Id. “A law passed by initiative is no less a law than one enacted by the Legislature. Nor is it more. A previously passed initiative can no more bind a current legislature than a previously enacted statute.” Id. at 290-91 (footnotes omitted).

The Court’s holding in Farm Bureau was explicit: a prior statute (whether enacted by the Legislature or by initiative) cannot prospectively invalidate a later statute. Therefore, RCW 43.135.034 cannot itself prospectively invalidate the Cigarette Machine Legislation.”

While the rest of us were under the impression that the Legislature must first amend or repeal an old law before undertaking a new policy strategy, the Attorney General’s Office appears to be arguing that another option is for lawmakers to simply ignore existing law and put a new one on the books.

The implication of the brief appears to indicate that if the Supreme Court upholds the constitutionality of the supermajority requirement for tax increases and a future Legislature ignores the law, the Attorney General’s Office will defend the Legislature’s tax increase.

Speaking of the Supreme Court and the King County Superior Court ruling from earlier this year:

“The State is seeking direct review by the Washington Supreme Court and has filed a motion seeking a stay of the superior court ruling. The Supreme Court Commissioner denied the State’s motion for a stay but referred the motion to the full Court which will consider the motion on July 11.”

Here are the other arguments the state makes in defense of the roll-your-own cigarette “tax”:

“In sum, plaintiffs are not likely to prevail for all of the following reasons as a matter of law: (1) RCW 82.32.150 requires an assessment before plaintiffs can challenge a tax statute in superior court even if they make constitutional arguments, (2) the cigarette tax is already due from consumers possessing, handling, or consuming any unstamped cigarettes in Washington, and therefore the Cigarette Machine Legislation does not raise taxes, (3) the enrolled bill doctrine prevents this Court from invalidating a statute based on perceived procedural error, (4) RCW 43.135.034 cannot itself invalidate the Cigarette Machine Legislation, and (5) the legislation does not violate the Washington Constitution. If the Court finds plaintiffs are not likely to prevail for any one of these reasons, it must decline grant the preliminary injunction.”


[Reprinted with permission from the Washington Policy Center blog]