Judge wrong to invalidate I-747's property-tax limits
June 2006
KING County Superior Court Judge Mary E. Roberts struck down Initiative 747 property-tax limits last month, paving the way for state and local officials to increase the tax burden by as much as 6 percent a year.
Roberts said I-747 was unconstitutional because the underlying law it sought to amend was itself declared unconstitutional 47 days before the election, and therefore voters were "incorrectly led" (her phrase) about what they were voting on. She concluded that in approving I-747, voters thought they were reducing the tax limit from 2 percent to 1 percent, instead of from 6 percent to 1 percent.
She is wrong in two ways. She is wrong that voters were misled, and she is wrong on the constitutional point about amending underlying law. I'll explain these two mistakes in turn.
First, voters were not misled about what I-747 would do. Here is the ballot title voters read:
"Initiative Measure No. 747 concerns limiting property tax increases. This measure would require state and local governments to limit property tax increases to 1 percent per year, unless an increase greater than this limit is approved by the voters at an election. Should this measure be enacted into law?"
This language is clear and straightforward. Whether the initiative reduced the limit from 6 percent or from 2 percent just didn't matter to most people, especially since the courts changed the rules part way through the election campaign (see below). And even if this secondary point did apply, it is not as important as upholding the people's basic right to make law by initiative.
I-747 passed by almost 58 percent of the vote. It passed in every county except King and Whitman. Voters knew exactly what they were doing. There was a vigorous campaign, and even activists who favor higher taxes knew what they were trying to stop.
Second, Roberts is wrong that Initiative 747 is unconstitutional. In drafting and filing I-747, sponsor Tim Eyman followed all the rules that were in place at the time. Here's what happened:
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Pre-2000 — under a 1970s-era law, state and local officials can increase the overall property-tax burden they place on citizens by as much as 6 percent a year.
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November 2000 — voters pass I-722, reducing the limit on annual property-tax increases to 2 percent. It is immediately challenged in court.
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January 2001 — Eyman files I-747, to reduce the limit to 1 percent. As required, he cites the law he seeks to amend. That law, though under legal challenge, is I-722.
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Sept. 20, 2001 — the state Supreme Court affirms a lower-court ruling that I-722 is unconstitutional. At that point, I-747 has already qualified for the November ballot and cannot be changed.
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Nov. 6, 2001 — the people of Washington overwhelmingly approve I-747.
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June 13, 2006 — Roberts strikes down I-747, again allowing government officials to increase yearly property taxes by as much as 6 percent.
I-747's sponsor did everything right. He drafted the initiative to amend state law as it existed at the time. There was no other choice; he followed the procedure required by law. Neither he nor anyone else could know that nine months later a court would change the underlying law, thus rendering Initiative 747 "unconstitutional." According to Judge Roberts' reasoning, I-747 was fully constitutional on Sept. 19, but not on Sept. 20, even though nothing about the initiative itself had changed.
Roberts has set a neat trap for voters. Since no one can tell how the law might change between January, when an initiative is filed, and November, when the people vote on it, her ruling effectively deprives the people of the right to make law through initiative. The Legislature or another judge could use the "Roberts rule" to sabotage any future initiative simply by changing underlying law after the initiative has been filed but before Election Day. That would automatically make any initiative, regardless of subject or content, "unconstitutional."
Simply put, it is not possible to draft an initiative that meets Roberts' test for constitutionality.
Court rulings don't operate in a vacuum. The effect of a ruling is as important as the train of reasoning that led to it. In this case, the effect of Roberts' ruling is to nullify the initiative process. The form of it remains in place — but the practical use of it by the people is lost.
It doesn't make sense that a ruling that is supposed to uphold the state constitution results in the people losing a basic constitutional right. Hopefully, the state Supreme Court will reverse this misguided decision.