On the first day of session the Senate, using the powers granted to it by Article 2, Section 9 of the state Constitution, adopted rules to govern its proceedings. Among the rules adopted was Rule 64 to require a supermajority vote to move a bill creating a new tax from second to third reading.

Yesterday Lt. Governor Owen, who serves as President of the Senate, issued rulings in response to two point of orders raised concerning Rule 64. While the first ruling was debatable, the second was a shocking break from precedent.

In his first ruling Owen decided that one of the transportation fees in the gas-tax bill was not a fee but instead a tax triggering the supermajority vote requirement of Rule 64. Though this ruling is open to argument, it does follow past precedent of the President of the Senate ruling on what a fee or tax is to help enforce a Senate rule.

The Lt. Governor's second ruling, however, moved away from enforcing Senate rules and instead Owen decided to declare the rule unconstitutional. This is a complete reversal from his prior rulings as well as a shocking expansion of the duty of the presiding officer of the Senate.

As noted by Reed's Rules, among the duties of the presiding officer is to enforce the rules of the body. Along with its own rules, Rule 40 of the Senate adopts the provisions of Reed's Rules also.

Reed's parliamentary rules also address the question of whether the presiding officer is supposed to make judgments of constitutionality:

So, also, the question of constitutionality is not for him [presiding officer] to decide. Incompatibility, inconsistency, and unconstitutionality are matters of argument.

This point is something the prior rulings of the Lt. Governor relied on and footnoted when explaining why he would not rule on constitutional questions. Here is just one of the examples from Owen's prior rulings:

The President begins by affirming his past practice of ruling on parliamentary, and not legal, matters. For this reason, a decision on the Constitutional argument is better left to the courts.

And this example:

The President has consistently ruled that issues relating to the legality of particular measures are better left to the courts, and that rulings will therefore address only parliamentary, not legal, inquiries. It is the duty of the President, however, to give full force and effect to the parliamentary rules and practices of this body.

Now that the Lt. Governor has taken what may be an unprecedented step of ruling a provision of the rules adopted by the Senate as being unconstitutional instead of enforcing them, the Senate has the option to use Rule 32 to overturn his decision:

Every decision of points of order by the president shall be subject to appeal by any senator, and discussion of a question of order shall be allowed. In all cases of appeal the question shall be: 'Shall the decision of the president stand as the judgment of the senate?'

By doing so Senators will make clear they expect the President of the Senate to enforce the rules of the body and follow past precedent and the protections of Reed's rules by not allowing the presiding office to decide matters of argument such as the question of constitutionality.

As noted by the state Supreme Court in its unanimous decision in Brown v. Owen, using the power granted by Rule 32 is the appropriate way for the Senate to respond to yesterday's rulings, should Senators choose to do so:

Article II, section 9 provides that each legislative house 'may determine the rules of its own proceedings.' The permanent rules of the senate govern those proceedings. Under the permanent rules, the president of the senate may speak to points of order and must decide all questions of order, ?subject to appeal by any member. He must decide and announce the results of all votes. He must sign all acts and resolutions in an open session of the senate. Members may discuss all points of order and appeal all decisions by the president of the senate. Any senator may enter a protest against any action of the senate on any question. Permanent rules may be changed or temporarily suspended by a majority of the senate . . .

Before Owen's parliamentary ruling triggering this dispute, Brown appeared to urge Owen to declare RCW 43.135.035(1) unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings . . . 

This court will not interfere in the internal proceedings of a legislative house to overturn a ruling on a point of order . . .

Essential to the exercise of legislative powers is the ability of each house to govern its own proceedings . . . 

In addition to this inherent power, our constitution specifically confers on each house of the legislature the right to 'determine the rules of its own proceedings,' article II, section 9, and charges the lieutenant governor with administering those rules as president of the senate . . .

Both Owen, as president of the senate, and Brown as a member of that body are subject to the procedural rules of the senate. Owen was required to rule on the point of order by Sheldon, and Brown was allowed to address the senate in opposition to the point of order. Owen gave a parliamentary ruling as is his obligation as president of the senate. Brown had the option to appeal to her colleagues and overturn Owen's ruling with a simple majority of the senate. She did not. Instead, Brown asked this court to intervene by ordering Owen to forward a bill, that pursuant to Owen's unchallenged parliamentary ruling, failed to receive sufficient votes for passage . . .

The power to establish and administer the procedural rules of the legislature has been committed solely to the legislature-not to the judiciary. These internal rules are essential to the senate's effectiveness as a legislative body. We find that it would be impossible to overturn Owen's parliamentary ruling-particularly where no member of the senate attempted to do so by exercising a right of appeal-without expressing disrespect for that body.

Now that the President of the Senate has decided to reverse precedent and start to rule on constitutional questions, it is up to the Senate to decide if it wants to ratify this new direction or vote to uphold its rules and limit the discretion of the presiding office to enforcing, rather than rewriting Senate rules.