# League of Education Voters v. State > Washington Supreme Court · February 28, 2013 · 176 Wash. 2d 808 URL: https://www.frixlaw.com/law-library/cases/4714865 ## Case - **Full name:** League of Education Voters v. The State of Washington, Christine Gregoire, as Governor - **Court:** Washington Supreme Court - **Decided:** February 28, 2013 - **Citations:** 176 Wash. 2d 808; 295 P.3d 743 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Chambers, Fairhurst, González, Johnson, Madsen, Owens, Stephens, Wiggins - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4714865 ## Opinion text C. Johnson, J. ¶42 (dissenting) — In its eagerness to embroil itself in the political arena, the majority abandons any semblance of judicial restraint to declare the process of legislative enactment constitutionally infirm. For the past two decades, the people of this state have repeatedly voted for the supermajority provision, as has the legislature when no initiative occurred. The majority hardly recognizes, let alone analyzes, that this court has been repeatedly asked to step in and decide this issue, and we have consistently held and rejected that invitation. In Walker v. Munro, 124 Wn.2d 402 , 879 P.2d 920 (1994), in Futurewise v. Reed, 161 Wn.2d 407 , 166 P.3d 708 (2007), and again in Brown v. Owen, 165 Wn.2d 706 , 206 P.3d 310 (2009), we rejected the invitation to engage in this political dispute, exercising the wisdom, restraint, and temperance not to step outside the court’s constitutional authority. Evidently something has changed, though the majority does not tell us what, to cause it to abandon these limiting principles and chart a new course for the court to more actively engage in the political process. This change is both unwise and unprecedented. ¶43 The majority summarily claims that since, procedurally, this case involves review of a declaratory judgment, that makes a difference. But this procedural distinction *830 does not make sense and is unsupported by any logical analysis. Justiciability questions are broader and more important than the specific mechanism used to get a case in front of the court. Surely more than this distinction is required to disregard 20 years of precedent. The majority does not tell us why in this case the issue must suddenly be answered when, in our prior cases, addressing this exact issue, we concluded that any resolution of the dispute required a legislative solution. Concepts of judicial restraint, justiciability, and separation of powers and issues raising political questions do not change based on the type of proceeding. ¶44 Although these doctrines do somewhat overlap, they have been applied in those cases where the issue raised required a determination of whether and when courts should decide an issue. These concepts of judicial restraint are not new or remarkable and have been applied consistently in cases raising the exact same issue presented here. ¶45 The majority anchors its cursory analysis of justiciability by focusing on Substitute House Bill (SHB) 2078’s failure to pass. SHB 2078, 62d Leg., 1st Spec. Sess. (Wash. 2011). However, the bill focused on by the majority was later largely passed through the legislative process and enacted into law. SHB 2078 dealt with closing certain tax loopholes. The problem with the majority’s assertion, is that a core component of SHB 2078 did pass. The legislature instead enacted Engrossed Senate Bill (ESB) 6635, 62d Leg., 2d Spec. Sess. (Wash. 2012), which, in substantive effect, contained the exact language of SHB 2078. Compare SHB 2078, § 2(3)(a)-(e), with ESB 6635, § 102(3)(a)-(e). The majority does not explain, presumably because no credible explanation exists, how the enactment of a law supports its conclusion that the political process in that enactment is constitutionally infirm. ¶46 When this bill was first proposed, the house majority vote to enact SHB 2078 could have resulted in several outcomes, as is always the political reality. The speaker *831 could have ruled it passed, and it then would go to the senate, which could have passed it, rejected it, or revised it. If it passed both the house and the senate and was submitted to the governor, it could have been signed into law or vetoed. No certainty exists as to what ultimately would have occurred in the political legislative process had the speaker ruled “favorably.” What did happen in this case is that the “essence” of SHB 2078 went through the legislative process and was later enacted as part of ESB 6635. The majority does not tell us or acknowledge in any way how the passage of these provisions can support a finding of justiciability based on the same provisions’ failure to pass. At the very least, that passage moots any dispute concerning how votes were counted or how the speaker ruled on SHB 2078. ¶47 The legislative process works precisely this way, and any disgruntled legislator can pursue a legislative remedy. When the speaker ruled against the bill, a member could have challenged that decision and ask that it be overturned, which may require majority vote. The proposal could have, as here, resurfaced as part of a different proposal. The proposal might have been relegated by its sponsors into the political process and debate and prioritized as part of that process. The point is that this effort to enact a legislative proposal has consistently been recognized by this court as a political legislative action in which courts have not interfered, nor should they. Because of the multitude of possible outcomes, the essence of the political legislative process involves many competing political choices into which courts should not intrude to act as referee. It should be further noted that the majority’s decision does absolutely nothing that affects SHB 2078, which, as indicated, later passed. f 48 In leaping to its result that the case is justiciable, the majority incredibly cites the “completely nullified” statement from the United States Supreme Court decision in Raines v. Byrd, 521 U.S. 811, 823 , 117 S. Ct. 2312 , 138 L. Ed. 2d 849 (1997). Because the bill was enacted, the *832 majority’s claim is simply wrong that the legislators’ votes were “ ‘completely nullified.’ ” Majority at 818 (quoting Raines, 521 U.S. at 823 ). Moreover, the majority does not acknowledge that in Raines the United States Supreme Court rejected this argument. Raines involved a challenge brought by members of Congress claiming the line-item veto, which gave the president a “veto-type” power over acts passed by Congress, effectuated a complete nullification of the votes supporting passage of those acts. In concluding that the Court lacked jurisdiction to decide the dispute, it recognized two principles that directly apply to the individual legislators here. First, the Court found that the individual members of Congress could not represent the interests of Congress itself. Second, the Court recognized that, as here, an adequate political remedy existed to resolve the dispute, a principle that our cases have consistently held. Raines, 521 U.S. at 824, 829 ; see Brown, 165 Wn.2.d 706; Walker, 124 Wn.2d 402 . The majority misrepresents the holding of Raines , which, if thoroughly reviewed, rejects the majority’s position here. ¶49 Similarly, the majority’s claim that the determination of justiciability hinges on the nature of the proceedings, declaratory action versus original jurisdiction, lacks foundation and misunderstands the concept of justiciability. “Justiciability” is defined as “[t]he quality or state of being appropriate or suitable for adjudication by a court.” Black’s Law Dictionary 943 (9th ed. 2009). In determining justiciability, it makes no difference where or how a claim is instituted. Our prior cases do not support any distinction, and the majority (absent the bare assertion that a distinction exists) cites no case or authority where such a difference was recognized. No such cases exist. ¶50 If the issue in this case looks somewhat familiar, we recently decided this exact issue. In Brown, we rejected a challenge to a decision made by the lieutenant governor that a bill failed to pass by not receiving the required supermajority vote, which is the precise claim brought here. *833 We extensively discussed and analyzed the history of the supermajority requirement. In that case we recognized that under the senate rules, the decision could have been overruled by a simple majority vote. We correctly found that this type of dispute involved the legislative process and was a political question, and, utilizing a separation of powers analysis, we would not intervene to referee. We have consistently and wisely embraced this approach since this supermajority restriction was first challenged in Walker . The majority makes no meaningful attempt to discuss, analyze, or distinguish the Brown case or any of our prior case holdings from the issue again raised here. ¶51 In addition to the comprehensive discussion and analysis in Brown, our rulings have been consistent on this issue. The list of cases includes Walker and Washington State Farm Bureau Federation v. Gregoire, 162 Wn.2d 284 , 174 P.3d 1142 (2007). These cases are not unique but are instead consistent with the results in many other cases. State v. Manussier, 129 Wn.2d 652, 670 , 921 P.2d 473 (1996) (political questions are not within the judicial power to determine); Roehl v. Pub. Util. Dist. No. 1 of Chelan County, 43 Wn.2d 214, 238 , 261 P.2d 92 (1953) (political questions lie outside the cognizance of the judiciary); see also Gilbreath v. Pac. Coast Coal & Oil Co., 75 Wn.2d 255, 259 , 450 P.2d 173 (1969) (taxation issues are not within the purview of the courts in the absence of an attack upon the constitutionality of the legislation involved); Skidmore v. Fuller, 59 Wn.2d 818, 822 , 370 P.2d 975 (1962) (the truth or falsity of the allegations in a recall demand is a political question to be determined by the voters); Capitol Hill Methodist Church of Seattle v. City of Seattle, 52 Wn.2d 359, 368 , 324 P.2d 1113 (1958) (the power to vacate streets is a political function that, in the absence of collusion, fraud, or interference with a vested right, will not be judicially reviewed); State ex rel. Donohue v. Coe, 49 Wn.2d 410, 417 , 302 P.2d 202 (1956) (determination of questions arising incidental to the submission of an initiative measure to the *834 voters is a political and not a judicial question, except when there may be express statutory or written constitutional law making the question judicial); State ex rel. York v. Bd. of County Comm’rs, 28 Wn.2d 891, 911 , 184 P.2d 577 (1947) (protection of the public from unreasonable uses of the highways is a political question, not a judicial one). The majority never mentions these cases or acknowledges why these holdings are being abandoned. ¶52 The majority also fails to apply or meaningfully analyze the factors our cases require when determining justiciability. We have defined a “justiciability controversy” as “(1) ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.” To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411 , 27 P.3d 1149 (2001) (alteration in original) (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815 , 514 P.2d 137 (1973)). We have elaborated that “the four justiciability factors must ‘coalesce’ to ensure that the court will be rendering a final judgment on an actual dispute between opposing parties with a genuine stake in the resolution.” To-Ro Trade Shows, 144 Wn.2d at 411 (quoting Diversified Indus. Dev. Corp., 82 Wn.2d at 815). None of the factors are satisfied here. As indicated, the first factor is not satisfied because the dispute over SHB 2078 no longer exists as it later passed under ESB 6635 and became law. Any current dispute is hypothetical at this time and certainly moot as to SHB 2078. ¶53 As to the second factor, perhaps an argument can be envisioned that the parties have opposing interests, but no genuine dispute actually exists concerning a current situation. Any disagreement between the parties involves what *835 might possibly occur in the future in the legislative process. Because of this, even assuming the second factor is satisfied, the third factor is not because we can only speculate as to what bills may be pursued sometime in the future. Based on these factors, justiciable controversy does not exist in this case. ¶54 The fourth factor could be established under the majority’s holding, but predictably, the future dispute over the raising of taxes and political choices about the appropriation of revenues involves ongoing political discourse, which this court lacks power to affect or influence. Under any approach, the dispute is, at best, possible to recur in the future. ¶55 Whether the justiciability factors are thoroughly analyzed or the holdings of our prior cases are applied and followed, this case is nonjusticiable. The decision of the superior court should be reversed and the matter remanded with direction to dismiss. J.M. Johnson and Stephens, JJ., concur with C. Johnson, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4714865. Public record. Not legal advice.