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Does the Lieutenant Governor have a Duty to Oppose Unconstitutional Legislation?
There is a dispute between retiring Washington Lieutenant Governor Brad Owen and candidate Cyrus Habib as to whether the Lieutenant Governor has a right to not sign a bill which fails to meet the Paramount Duty to fully fund our schools. Habib says yes. Owen says No. As this is an important issue that is likely to come up in the 2017 legislative session and play a role in the McCleary School Funding case, we will look at what our Washington State Constitution actually says about the duties of the Lieutenant Governor. If you support the Paramount Duty clause in our State Constitution, please share this article with other parents and teachers.

On June 28, 2016, Owen sent Habib a nasty letter accusing Habib of making an unconstitutional statement just to win an election: “The first and most irresponsible and unconstitutional statement that you have made is that you will not sign a budget bill that does not fulfill what you believe is the direction given by the supreme court to the legislature in the McClearydecision... However, the lieutenant governor does not have nor was ever expected to have veto power over the legislature."

Habib responded: “I have never said that I would veto a bill. Only the governor can do that. I have said that I would use every tool at the disposal of the lieutenant governor to oppose an unconstitutional budget that doesn’t meet the court’s order... If I feel that the senate has passed a blatantly unconstitutional piece of legislation, I would leave it to the president pro tem to sign the bill, and would let the record show that, in my judgment, the bill had constitutional defects.” http://www.seattlemet.com/articles/2016/6/29/retiring-lieutenant-governor-owen-blasts-state-senator-seeking-his-seat

Obviously, one of these people is wrong. Since our State Constitution was written in plain language by normal farmers and shop keepers, let's look at what it actually says about the duties of the State and the duties of the Lieutenant Governor.

Before we begin, I want to make it clear that this is in no way an endorsement of either Habib or Owen. I have publicly supported Senator Karen Fraser for Lieutenant Governor because during my past 8 years of trying to restore school funding in Olympia, Senator Fraser has been one of the strongest supporters of actually funding our public schools. This article is instead a review of what our Washington State Constitution actually says. You can read our State Constitution yourself at the following link:http://leg.wa.gov/LawsAndAgencyRules/Pages/constitution.aspx

I have previously written about the history of our State Constitution, the Paramount Duty of the Superintendent of Public Instruction and how the Paramount Duty clause came about. Our State Constitution is the most unique state constitution in the nation - including many clauses not found in any other state constitution. You can read my previous article at the following link: https://springforbetterschools.org/1-fully-fund-schools/why-ending-corporate-welfare-is-required-by-the-washington-state-constitution

Now for the facts. Here is what our state constitution says about the Lieutenant Governor.

Article 3, Section 1 states: "SECTION 1 EXECUTIVE DEPARTMENT. The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature."

In addition to these 8 independently elected state officers, our state has 9 independently elected members to the Washington Supreme Court. This gives Washington state the highest number of independently elected officers of any state in the nation (8 + 9 = 17). Unlike most other state constitutions, none of these State Officers are appointed by either the Governor or the legislature. In a debate over whether we should even have a Lieutenant Governor in August 1889, the drafters of our state constitution said they wanted a lot of separately elected state officers as a check against a corrupt legislature and/or corrupt governor who they feared might not honor their Paramount Duty to fund our schools. This fact alone indicates that the drafters of our Constitution wanted an independent Lieutenant Governor that was not controlled by the legislature and was not merely a rubber stamper for whatever the Senate wanted to do.

In addition, Article 2, Section 10of our state constitution says that when the Lieutenant Governor does not attend the Senate, the Senate shall elect their own President to be in charge of their meetings: SECTION 10 ELECTION OF OFFICERS. Each house shall elect its own officers; and when the lieutenant governor shall not attend as president, or shall act as governor, the senate shall choose a temporary president.

Article 2, Section 32 says that no bill shall become law unless it is signed by the "presiding officer" which in the case of the Senate could be either the Lieutenant Governor or the person elected by the Senate to be the President of the Senate: SECTION 32 LAWS, HOW SIGNED. No bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session, and under such rules as the legislature shall prescribe.

Also, Article 3, Section 16 states the powers of the Lieutenant Governor: SECTION 16 LIEUTENANT GOVERNOR, DUTIES AND SALARY. The lieutenant governor shall be presiding officer of the state senate, and shall discharge such other duties as may be prescribed by law. 

The two question here are what does it mean to be a Presiding Officer - and what does it mean to discharge other duties as may be prescribed by law?

What does it mean to be a Presiding Officer of the Washington State Senate?
Since the Vice President is the Presiding Officer of the United States Senate and since the US Senate was used as a model for the Washington State Senate, we can look at the duties of the Vice President. Here is a quote from Wikipedia: The Presiding Officer is... charged with maintaining order and decorum, recognizing members to speak, and interpreting the Senate's rules, practices and precedents. So the Lieutenant Governor is like the Chair of the meeting and runs the Senate meetings.

What does it mean to discharge other duties as may be prescribed by law?
There is a section of the Revised Code of Washington in which the legislature has prescribed the duties of the Lieutenant Governor. The Lieutenant Governor is covered by Section 43.15 which merely says that "The lieutenant governor has the following duties:The lieutenant governor serves as president of the senate."

There is also a law from 1909 requiring State Officers to Swear an Oath to Uphold the Washington State Constitution: Revised Code of Washington 43.01.020 (passed in 1909) states: "The governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, commissioner of public lands, and insurance commissioner, shall, before entering upon the duties of their respective offices, take and subscribe an oath or affirmation in substance as follows: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Washington, and that I will faithfully discharge the duties of the office of (name of office) to the best of my ability."

Our State Constitution, Article 2, Section 9 SECTION 9 RULES OF PROCEDURE states: "Each house may determine the rules of its own proceedings."So what are the rules of Washington State Senate?You can find them at the following link:http://leg.wa.gov/Senate/Administration/Pages/senate_rules.aspx

Here are two of the relevant rules:

Rule 1.5 states: "The president shall, in open session, sign all acts, addresses and joint resolutions."

Rule 2.1 "Upon the organization of the senate the members shall elect one of their number as president pro tempore who shall have all the powers and authority and who shall discharge all the duties of lieutenant governor acting as president during the lieutenant governor's absence."

Thus, the Lieutenant Governor as the President of the Senate is required by rule to sign all acts passed by the Senate. However, our State Constitution also allows the Senate to appoint a President Pro Tem who shall act as the Presiding Officer in the absence of the Lieutenant Governor. So if the Lieutenant Governor did not want to sign a bill for any reason, such as a belief that the bill did not comply with our state constitution, it would not be a violation of the Senate rules to be absent and allow the elected President of the Senate to sign the bill.

Finally, Washington State laws enacted by the state legislature must comply with the Washington state constitution

Article 1, SECTION 29 of our State Constitution states: "CONSTITUTION MANDATORY. The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise." This means that the Washington State legislature is not allowed to pass a law (or budget) that is contrary to the Washington State Constitution.

Is any officer of the State such as the Lieutenant Governor required to comply with a law that is contrary to the Washington State Constitution?

The real question here is whether the Lieutenant Governor must sign bills passed by the Washington State Senate even if the bill is contrary to the Washington State Constitution. There are a couple of Supreme Court cases that have a bearing on this question. The first is State Ex Rel. Meyers v. Reeves, 194 Wash. 503, 78 P.2d 595. In 1938, the Lieutenant Governor attempted to call a Special Session of the legislature on a day that the Governor was temporarily out of the State. While our Supreme Court ruled that the Governor got back into the state 8 minutes before the Special Session might have been certified by our Secretary of State, Supreme Court justice Robinson wrote a concurring opinion stating that our State Constitution did not give the Lieutenant Governor the right to declare a special session while the Governor was still alive. What is important Robinson pointed out was that laws passed by our legislature did not have priority over the plain meaning of our State Constitution. In addition, a law passed by the legislature can not have priority over the purpose of a section of our state constitution. Robinson concluded by saying: "Lieutenant-Governor Meyers did not succeed to the office of governor when he returned to the state and had no authority whatever to issue the proclamation." Several other Supreme Court Justices agreed with Robinson.

Brown versus Owen
Senator Habib in other statements indicated his position relies on the Washington Supreme Court ruling in Brown v. Owen. decided March 5, 2009. Here is the link to this ruling. http://caselaw.findlaw.com/wa-supreme-court/1084216.html


Here is what Senator Habib had to say about this ruling: "In Brown v. Owen, the Court made clear that “the duties of the Speaker of the House and the President of the Senate” are “discretionary,” including the power to declare a bill passed or not passed.  At the same time, the Court also made clear that, pursuant to the Senate’s own rules, “any member of the senate who disagrees with the president's ruling on a point of order may appeal to the body of the Senate,” and overturn the President’s ruling “with a simple majority of the Senate...If a point of order were raised with respect to the constitutionality of a bill or legislative provision, I would issue a ruling on that question, and that, if I were overruled by the Senate, I would reserve the right to have the ruling of the Lt. Governor made a part of the legislative record and then defer to the President pro tem to sign the bill instead."

I have read Brown v. Owen and this is the process described by our Supreme Court and the process permitted by the Senate Rules and it is a process that conforms to the Washington State Constitution. In short, there is nothing in the Washington State Constitution, Washington State Laws or Washington State Senate Rules requiring the Lieutenant Governor to sign bills that the Lieutenant Governor objects to. His or her signature is discretionary. The Lieutenant Governor could choose to either sign or not sign a bill.

What is not discretionary is honoring our State Constitution Paramount Duty to Amply Fund our Public Schools
Article 9 Section 1 of our State Constitution states: "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."

Unlike other states, which made it the duty of the legislature to adequately fund our schools, the drafters of our State Constitution created a shared Paramount Duty - a duty applied to the entire State Government including the Supreme Court - when they wrote Article 9, Section 1. While other state constitutions made it the duty of the state legislature to fund schools, the Washington Constitution made it the "paramount duty of the State." Notice that Article 9 Section 1 does not merely refer to the State legislature. It refers to our entire State government - which includes the Governor and the Superintendent of Public Instruction. In other words, it is the Paramount Duty of every branch of State Government to make ample provision for the education of all children.

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Note also that this Paramount Duty is not a discretionary duty but a mandatory duty of every officer of the state - including the Lieutenant Governor. Thus, if the Attorney General believes that a bill does not comply with the Paramount Duty, he not only has a right to not sign the bill, but a Constitutional Paramount Duty to not sign the bill.

There are other Constitutional issues at stake here. For example, our biennial budget includes billions of dollars in hidden tax breaks for wealthy multinational corporations. This is a clear violation of several sections of the Washington State Constitution, including Article 1, Section 12 which states:

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.

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See also Article 2, SECTION 28 SPECIAL LEGISLATION.The legislature is not only prohibited from enacting special laws regarding the management of our public schools, they are also prohibited from enacting any private or special laws... Here are three of several clauses prohibiting tax breaks to corporations:

5. For assessment or collection of taxes, or for extending the time for collection thereof.
6. For granting corporate powers or privileges.


10. Releasing or extinguishing in whole or in part, the indebtedness, liability or other obligation, of any person, or corporation to this state.

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How this Lieutenant Governor controversy relates to resolving McCleary
Our Supreme Court can compel state officers to take non-discretionary action with a Writ of Mandamus. Here is a quote from Brown v. Owen: "Mandamus is available “to compel a state officer to undertake a clear duty.”  Gerberding v. Munro, 134 Wash.2d 188, 195, 949 P.2d 1366 (1998). A mandatory duty exists when a constitutional provision or statute directs a state officer to take some course of action."

The drafters of our state constitution wrote Article 9, Section 1 to make it the Paramount Duty of the entire State to amply fund our public schools because they did not want a bunch of rubber stampers caving into whatever the legislature wants. Instead, they wanted several independently elected State Officers to publicly oppose the legislature if the legislature refused to comply with their Constitutional Paramount Duty to fully fund our schools.

Any Lieutenant Governor would not only have a right to oppose legislation which failed to fully fund our public schools, but they would have a Paramount Duty to oppose such legislation. It is not merely up to the Washington State Supreme Court to defend the Washington State Constitution, it is up to all of us. As always, I look forward to your questions and comments.

Regards,
David Spring M. Ed.
Candidate for Superintendent of Public Instruction
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