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Originally published Wednesday, May 30, 2012 at 7:13 PM

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State's tax law is dealt a setback by judge

State Attorney General Rob McKenna says he will appeal a judge's ruling Wednesday against a law requiring a two-thirds vote in the Legislature to increase taxes.

Seattle Times Olympia bureau

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A King County judge on Wednesday ruled that a law requiring a two-thirds vote in the Legislature to increase taxes is unconstitutional.

King County Superior Court Judge Bruce Heller, in his order, said the supermajority vote requirement put in place by a voter-approved initiative in 2010 "violates the simple majority provision" of the state constitution.

State Attorney General Rob McKenna says he'll appeal the decision directly to the state Supreme Court and will seek to have it suspended in the meantime.

"We believe these voter-enacted laws are constitutional, and we are determined to defend the will of the voters, just as we defend laws passed by the Legislature," he said in a statement.

State House Republicans supported the appeal. "The idea that a two-thirds vote of the Legislature should be required to raise taxes is important and one that voters have supported four times in the past," said Rep. Gary Alexander, R-Olympia, the ranking Republican on the House Ways and Means Committee.

McKenna is the Republican candidate for governor, running against Democratic challenger Jay Inslee. A lawsuit seeking to overturn the two-thirds requirement was filed last year by two statewide education groups and a dozen Democratic state lawmakers, among others.

"We won on pretty much every issue," said Rep. Jamie Pedersen, D-Seattle, a plaintiff in the case, who is also an attorney. "All of the procedural things that have been the death of previous challenges, we won on every point. On the merits of the case itself, he agreed with all of our arguments."

Mary Lindquist, president of the Washington Education Association, said in a statement that if the ruling is upheld, it "will pave the way for the Legislature to fully fund K-12 public schools ... We hope it will be settled soon. Our kids can't wait any longer."

The WEA, the state's largest teachers' union, also is a plaintiff in the case.

Pedersen said he hopes the state Supreme Court can hear the case this fall and rule on it while lawmakers are still in session next year.

He noted the court last year ruled the state isn't meeting its constitutional obligation to fully fund basic public education. Pedersen said he expects a push for some sort of tax increase next session to help fund education, if the Supreme Court ends up agreeing with Heller.

Lawmakers seeking to overturn the two-thirds requirement are saying "if you really want us to fund education amply we need some tools to be able to do that," Pedersen said. "So please give us back the tools that we need to be able to raise revenue and adequately fund education."

Gov. Chris Gregoire has argued new revenue will be needed for education. But McKenna says he doesn't see the need for more taxes and believes economic growth and money saved through efficiencies can provide additional funding for education.

Inslee has a similar position. His campaign said he "isn't proposing taxes, but is proposing we focus on growing our economy" and find efficiencies to funnel more money to education. However, Inslee's staff said he does not support the two-thirds vote requirement.

The lawsuit contends the supermajority requirement violates the state constitution, which gives the Legislature the authority to pass laws, in most cases, by a simple majority vote.

The lawsuit targets Initiative 1053, the latest of four voter-approved measures since 1993 that have limited the Legislature's ability to raise taxes.

I-1053 requires a two-thirds vote of the House and Senate, or voter approval, to increase taxes. Sponsored by Tim Eyman, I-1053 was approved by 64 percent of voters in 2010.

In addition to ruling the two-thirds requirement unconstitutional, Heller struck down the provision requiring voter approval to enact taxes.

Opponents of the two-thirds requirement have challenged it in court three times previously and failed for essentially procedural reasons, with courts ruling the plaintiffs lacked sufficient standing to make their claims. Heller ruled that in this case, they do have standing.

In his ruling, Heller also noted that when the state constitution was written, "none of the framers proposed that certain bills subject to (the simple majority vote requirement) should require a supermajority to pass."

But the framers did require a supermajority vote in specific cases, he said, such as requiring a two-thirds vote in the House and Senate to amend or repeal initiatives approved by voters within the first two years of passage.

"Since the framers knew how to create supermajority exceptions but... did not do so for tax bills, the court presumes that the absence of supermajority language was intentional," Heller wrote.

Whether the state Supreme Court will agree is anybody's guess.

"My experience is they can duck most issues if they want to, and they can address most issues if they want to. So whether they are willing to or not is up to them," said Hugh Spitzer, an affiliate professor at the University of Washington School of Law.

Andrew Garber: 360-236-8266 or agarber@seattletimes.com. Material from The Seattle Times archives was used in this story.

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