The constitutional separation of powers between the legislative, executive, and judicial branches of government is imperative to our way of life. It protects citizens from tyranny. But our governor apparently decided that her separated role as our state’s chief executive was too binding. She has decided to legislate, too.
So, on behalf of the citizens of Washington State and our clients Pat and Sandy Tarzwell, Sterling Hill, James Wolfe, Matt Erickson, and Cindy Marshall, the Evergreen Freedom Foundation initiated legal action against Governor Christine Gregoire and several state agencies for pursuing actions outside their constitutional and statutory authority. We filed the lawsuit in Thurston County Superior Cout today, July 21. We want you to be one of the first to know what we did and why we did it.
During the 2009 Legislative Session, Gregoire introduced a bill to reduce green house gas emissions (SB 5735). Her bill was discussed in both the House and the Senate. After much debate and citizen testimony, legislators determined it needed more study. The bill died.
Governor Gregoire didn’t like that outcome. So on May 21, 2009, she issued Executive Order 09-05 instructing the Departments of Ecology and Transportation to take specific actions to address climate change—the same actions she requested in her failed legislation.
In her press conference, Gregoire said, “What we’ve done in the executive order is everything that was in the final bill—plus. There’s more in the executive order then was in the final bill that did not pass the legislature.” Clearly, Executive Order (EO) 09-05 was intended to replace her rejected legislation.
We requested public records of what transpired in the process of creating EO 09-05 especially as it related to intent. Here’s an example of what we found in a confidential briefing document from then-Director of Ecology Jay Manning to Governor Gregoire:
“With the legislature’s failure to pass your climate change bill, you directed us to prepare an executive order (EO) that accomplishes what the bill would have authorized and more.” He continued: “[W]e propose adding several significant directives that make the EO more significant, more attractive to those interested in making progress on climate change and more controversial for those not so inclined.” Jay Manning, Governor’s Decision Document, Climate Change EO (May 5, 2009)
If we are correct that Governor Gregoire exceeded her constitutional authority by issuing EO 09-05, the order is invalid and all expenditures of public funds as a result of the executive order are without proper authorization and should be halted immediately. The governor has the right to champion her climate change beliefs and attempt to persuade the legislature and the public that she is right. But she does not have the authority to circumvent the proper legislative process.
Executive Order 09-05 will cost the taxpayers millions of dollars. The governor has no legal right to authorize taxpayer expenditures or new revenue sources without legislative approval. This “end-run” around the legislature is not only unacceptable, it is irresponsible to add millions of dollars to our staggering state deficit.
With a stroke of the pen, our governor has further eroded one of the most basic tenets undergirding the American founding: no taxation without representation. Why elect principled legislators or take time to make our voices heard on the capitol steps, if our governor disregards the very process designed to protect us from tyranny?
Power vested in a single ruler is the definition of tyranny. We are not there, but our country is moving in that direction. What’s worse is the legislative body giving a wink and a nod to the executive branch to pursue unconstitutional activity—be it the president or the governor—because they fear treading that policy ground themselves. We ought to not re-elect legislators who are silent on this matter.
So we the people must step up to stop this abuse. If we allow our governor to take upon herself the power to spend public funds against the wishes of both the Senate and the House, we will pay in ways that go far beyond finances.
Our Chief Legal Counsel, Mike Reitz has put this case together with assistance from our legal advisors. Mike, along with Attorney General Rob McKenna and Steve O’Ban, helped craft the successful plan that took us all the way to the US Supreme Court on behalf of teachers and free speech, so you can count on him to craft this case well. He will keep you updated. Please follow the lawsuit at www.effwa.org.
EO 09-05 went into effect in May 2009, but several regulations will not be adopted or implemented until 2011. Before we made the decision to proceed with legal action, we needed to finish our research, gather motivated plaintiffs, and determine whether or not we could afford to bring a suit. Thankfully, it’s unlikely to cost extraordinary amounts of money to get a judicial ruling on the separation of powers in this case. Also thankfully, we have a donor who will give one dollar for every two dollars our members provide to us earmarked for this case.
But we must move quickly now. Today, we put a stake in the ground. So, if you have the ability to help us with the costs, know that your donation will be matched to extend its value. A $10,000 donation will result in $5,000 match from our benefactor. A $100 donation will garner $50 in matching funds. You can participate from personal or business accounts. All donations are tax-deductible to the extent allowed by law. Click here to make a tax-deductible donation today.
With your help, the Freedom Foundation will stop this abuse of power that leads to eventual tyranny. We will defend our constitution and protected our right to have “no taxation without representation.” Thank you for your consideration.
Sincerely,
Lynn Harsh, Chief Executive Officer
P.S. You can read our press release and watch a short video about the case at http://www.effwa.org/main/
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