COSTCO’S LIQUOR STORE INITIATIVE AND THE STATE CONSTITUTION

(Tom speaks only for himself in this blog and not for the Court.)

I have provided an update on my health at the end of this blog.  It is good news.

INITIATIVE -1183

Most voters I have talked to voted for Costco’s initiative to privatize liquor sales because they thought the price would come down.  They didn’t know about the 17 percent tax based upon sale of spirits (hard liquor).  They did not know about the tax because it wasn’t even hinted at in the initiative’s title.  That is why I thought the initiative was unconstitutional.  Before I joined the Washington Supreme Court, I thought the initiative process was the way the people could legislate when the legislature failed to do so.  I now believe it has been corrupted and is a tool for big money special interest groups to get lopsided legislation through; legislation which would never survive the crucible of the legislative process.

I-1183 is an example on how companies manipulate initiatives for their own purposes.  Costco’s I-1183 closed state liquor stores and provided that the spirits could only be sold in stores of 10,000 square feet or larger unless there were no big box stores in a community.  A 10,000 square foot building is a big building and excludes many stores.  Only big box stores qualify.  Costco tried an initiative two years before and lost largely because of opposition from police and firefighters who would lose a source of revenue and concerns that the State would loose millions of dollars in revenues.  So Costco messaged its initiative to provide $10 million  in annual revenue for police and firefighters and a 17 percent tax on the sale of liquor to boost the general fund.  This time the first responders and others state and local officials interested in revenue supported the initiative and it passed.  But did it meet constitutional requirements?  A closely divided court upheld I-1183 5 to 4.  Washington Ass’n for Substance Abuse and Violence Prevention v. State, 174 Wn.2d 642, 682, 278 P.3d 632 (2012)  I was among the dissenters.

Article II, section 19 of our constitution provides, “No bill shall embrace more than one subject, and that shall be expressed in the title.”  This constitutional requirement applies to both legislation passed by the legislature and to legislation passed by the people.  There are two distinct prohibitions in article II, section 19: (1) the single-subject rule and (2) the subject-in-title rule. The single-subject rule aims to prevent the grouping of incompatible measures and to prevent “logrolling,” which occurs when a measure is drafted such that a legislator or voter may be required to vote for something of which he or she disapproves in order to secure approval of an unrelated law.  Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 212, 11 P.3d 762, 27 P.3d 608 (2000); Wash. Fed’n of State Emps. v. State, 127 Wn.2d 544, 552, 901 P.2d 1028 (1995).

In essence, article II, section 19, is a notice requirement.  It requires that the title put voters on notice of the subject of the legislation.  It requires the sponsors to be honest about what is contained within the proposed legislation.  A title that is false or misleading renders the law unconstitutional.  State ex rel. Wash. Toll Bridge Auth. v. Yelle, 32 Wn.2d 13, 24-25, 200 P.2d 467 (1948).  Nowhere in the title did I-1183 inform the voter that it would raise taxes.  The title does disclose it will “set license fees based on sales.”  But there is an established and accepted legal difference between a fee and a tax.  A tax goes to the general good.  A license fee connotes something different from a tax; the money collected for a fee does not go toward public needs, but toward the cost of regulation or it is actually a key part of the regulation. Franks & Son, Inc. v. State, 136 Wn.2d 737, 750, 966 P.2d 1232 (1998).  Fees are administrative and usually support the service provided by the legislation.  This reference to setting fees based upon sales does not inform a voter of a 17 percent tax on sales.

I understand why Costco was happy that the ballot title chose to call the initiative a fee instead of a tax.  If people understood they were raising taxes on spirits, they might not have voted for I-1183.  But the title was misleading and that is exactly what article II, section 19 is intended to prevent.  It is the courts function to ensure that all legislation meets constitutions requirements.

UPDATE ON MY HEALTH

Maintenance chemotherapy will not cure our cancer but it will give us more time. In Judy’s case she can maintain for many years and in my case we expected it to add a few months.  But we both have responded very well to the therapy and our tumors have gotten smaller and in some cases disappeared.  Because I have responded well and the side-effects are daunting, I was off of chemo for six weeks.  We traveled to Grand Turk Bahamas and scuba dived.  Yes, I said scuba dived.

Judy_and_guide_Mackie

Now I don’t want you to think this was easy.  We are both pretty feeble.   Judy limps from cancer on her right hip and often uses a cane.  Navigating airports was difficult for her.  I fatigue easily and I look so bad, people take one look and jump up and offer me their seat, which I often fall into from exhaustion.  I can’t talk, eat, and have difficulty swallowing and opening my mouth wide enough to put a finger between my teeth.  Did I mention I have a feeding tube through my belly and a hole in my throat?  We had special equipment and took extra time to prepare but I was still afraid the dive shop would reject us.  They didn’t and we are both seasoned dive masters and while we had our issues on land, once we rolled backwards into the clear Caribbean and became weightless, we had no disabilities at all.  We know how to conserve our energy under water and we picked Grand Turk because the waters are calm and visibility is great.  The scuba diving was weightless hydrotherapy for Judy’s hip.

Tom_and_Judy_Grand_Turk_2013

The trip was an unexpected gift; maybe a miracle.  Two months ago I would not have thought travel possible.  But the pain in my throat told me the tumor in my neck and perhaps others are growing again, and I went back on chemotherapy for 5 weeks.   Judy had to have a blood transfusion to raise her red blood cell count.  We are told this is not uncommon but it is still worrisome.

We enjoyed our gift and it has given us hope.  I will take nothing for granted.  I will make the most of what I am given.