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GONZAGA LAW REVIEW [Vol. 44:3 the number of votes needed for the body to pass the bill.' 0 2 If the charge were a tax, it would presumptively require a two-thirds vote under RCW 43.135.035(1).11 3 If it was a fee, the body could pass the bill with a constitutional majority.' 0 4 In response, Senator Brown argued that the statutory supermajority requirement potentially conflicted with the voting requirements established in article I, section 22,105 which states that "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." ' 0 6 Thus, Senator Brown claimed that the two-thirds vote required by Initiative 960 effectively amended the constitutional majority vote requirement without following the constitutional amendment process.' 07 The Senate President, while acknowledging the possible legal merits of Senator Brown's arguments, concluded that he lacked authority to rule on a statute's constitutionality; rather, the President must presume that the statute was constitutional and limit the scope of his ruling to parliamentary questions only. 10 8 His ruling went on to conclude that-as a parliamentary matter-Senate Bill 6931 triggered the statutory supermajority requirement because it imposed a tax rather than a fee. 109 Ultimately, after the body voted, the President ruled that the bill failed to pass the Senate, having received a constitutional majority vote but failing to satisfy the applicable statutory supermajority requirement." 0 On Monday, March 3, 2008, following the Friday vote, Senator Brown filed an original action in mandamus in the state supreme court,"' requesting an accelerated 102. S. Journal, 60th Leg., Reg. Sess. at 649-50 (Wash. 2008) (ruling of February 29, 2008, on S.B. 6931); Brown, 2009 WL 564432, at *3. 103. Wash. S. Journal, at 654-55; Brown, 2009 WL 564432, at *3. 104. WASH. CONST. art. H, § 22; SEEBERGER, supra note 2, at 229 (constitutional majority is a majority of members elected to each house). 105. Wash. S. Journal, at 650 (ruling of February 29, 2008, on S.B. 6931); Brown, 2009 WL 564432, at *3. 106. WASH. CONST. art. 1I, § 22 (emphasis added). 107. Wash. S. Journal, at 650 (ruling of February 29, 2008, on S.B. 6931); see Brown, 2009 WL 564432, at *3. 108. Wash. S. Journal, at 654 (ruling of Feb. 29, 2008, on S.B. 6931); Brown, 2009 WL 564432, at *3. 109. Wash. S. Journal, at 655 (ruling of Feb. 29, 2008, on S.B. 6931); see Brown, 2009 WL 564432, at *3. 110. Wash. S. Journal, at 655 (ruling of Februaiy 29, 2008, on S.B. 6931) (noting the final vote was 25 aye, 21 nay, I absent, and 2 excused, a bare constitutional majority); Brown, 2009 WL 564432, at *3. 111. Brown, 2009 WL 564432, at *3; see WASH. CONST. art. IV, § 4 (the state supreme court has original jurisdiction over mandamus actions). Cf Walker v. Munro, 879 P.2d 920, 926 (Wash. 1994) (state supreme court lacks original jurisdiction in declaratory judgment actions); WASH. REv.
2008/09] WASHINGTON'S LAW OF LAW-MAKING 429 briefing schedule so that the court could rule before adjournment of the legislative session. 1 2 Although the court declined the request for a March 2008 ruling," 3 it accepted review and heard oral argument on September 9, 2008. In her briefing to the state supreme court, Senator Brown argued that the statutory supermajority requirement enacted by Initiative 601, amended by Initiative 960, and codified in RCW 43.135.035 has the effect of modifying article H1, section 22 by imposing an extra-constitutional supermajority requirement, one that conflicts with the constitution's otherwise applicable majority standard.' 14 The constitution establishes numerous instances where legislative supermajority votes are required, 115 but, argued the Senator, only the constitution may validly establish a supermajority requirement. 116 For these reasons, she contended that the statutory two-thirds vote requirement for legislative actions that increase taxes was void as an attempt to amend the constitution without following the requisite procedures for a constitutional amendment." 7 In so arguing, she relied on Gerberding v. Munro 118 and CODE ch. 7, § 24 (Uniform Declaratory Judgment act). 112. See Brown, 2009 WL 564432, at *3; see Motion for Accelerated Review of Petition Against State Officer, Washington State Supreme Court, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct. Mar. 3, 2008). 113. Order, Washington State Supreme Court, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct. Mar. 6,2008). 114. Petitioner's Updated Initial Brief at 13-15, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct. Apr. 25,2008). 115. WASH. CoNsT. art. II, § 1(c) (two-thirds vote of each house to amend ballot measure within two years of its passage); art. 11, § 9 (two-thirds vote of appropriate house required to expel a member); art. H1 § 12 (two-thirds vote of each house required to call a special session); art. II, § 24 (60% vote of both houses required for lottery); art. II, § 36 (two-thirds vote of each house required to introduce bill within last ten days of session); art. II, § 43 (two-thirds vote of each house required to change redistricting commission's plan or to reconstitute commission); art. Im, § 12 (two-thirds vote of each house required to overturn governor's veto); art. V, § 1 (two-thirds vote of Senate required for impeachment); art. VII, § 12 (three-fifths vote of each house required to appropriate from Budget Stabilization Account absent specified circumstances); art. VIII, § 1 (i) (three-fifths vote of each house required to contract debt) art. XXIII, § 1 (two-thirds vote of each house required to propose constitutional amendment); art. XXIII, § 2 (two-thirds vote of each house required to call a constitutional convention); art. XXVIfI, § 1 (two-thirds vote of each house required to change legislative salary commission). 116. Petitioner's Updated Initial Brief, supra note 114, at 13-15; WASH. CONST. art. II, § 22; see Rosenow, supra note 3, at 535-36 (constitutional convention rejected motion to allow passage of legislation by vote of majority of members present). 117. Petitioner's Updated Initial Brief, supra note 114, at 14; see WASH. CONST. art. XXIII, § 1. 118. Gerberding v. Munro, 949 P.2d 1366, 1377 (Wash. 1998) (qualification requirements for constitutional officers may not be supplemented except by constitutional amendment; initiative could not amend constitution to do so).
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