There are different kinds of laws.
There are the laws of nature. There are the laws of man. And some would argue that there are the laws of God.
But here in Washington state, we also have the laws of Rob McKenna.
HA regulars are well familiar with our Attorney General’s efforts to redefine both the scope and obligations of his office, so it should come as no surprise to see McKenna’s imaginative approach to the law applied to more mundane issues, for example, our state’s formula for calculating increases in the minimum wage:
The state Department of Labor and Industries asked Attorney General Rob McKenna if the state would be able to increase the minimum wage if inflation increases, but not above the level the current rate is based upon. In an opinion issued Wednesday, McKenna said no.
See, in accordance with 1998’s Initiative 688, Washington state’s minimum wage is increased annually by the rate of inflation, specifically the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). Last year the CPI-W actually decreased, so the minimum wage remained flat. This year the CPI-W is expected to increase slightly, but not by the amount it decreased the previous year. So McKenna says no minimum wage increase.
But what does the law actually say?
(b) On September 30, 2000, and on each following September 30th, the department of labor and industries shall calculate an adjusted minimum wage rate to maintain employee purchasing power by increasing the current year’s minimum wage rate by the rate of inflation. The adjusted minimum wage rate shall be calculated to the nearest cent using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index, for the twelve months prior to each September 1st as calculated by the United States department of labor. Each adjusted minimum wage rate calculated under this subsection (4)(b) takes effect on the following January 1st.
I’m no lawyer, but the language seems plain… so plain that it actually describes a mathematical formula that a software programmer might express as something like this:
if (CPIW > 0)
then mWage := mWage + (mWage * CPIW);
The if statement is necessary because the statute specifically uses the word “increasing” not “adjusting” or something like that. I suppose one might theoretically argue that the plain language of the statute permits increasing the minimum wage by a negative amount, but that’s not McKenna’s argument; if it were, then the minimum wage should have decreased from 2009 to 2010. It didn’t.
No, in his opinion, McKenna argues that the tension between the words “maintain” and “increasing” makes the statute’s language ambiguous, going to great lengths to confuse the matter by engaging in a bunch of mathematical gobbledygook, culminating in his adoption of an entirely extra-statutory “index-ratcheted calculation.” McKenna also asserts that the statute does not define an actual formula for adjusting the minimum wage, when in fact the use of the word “by” in constructing the sentence clearly denotes a course of action: “by increasing the current year’s minimum wage rate by the rate of inflation.”
Q: How shall L&I “calculate an adjusted minimum wage rate to maintain employee purchasing power”…?
A: “by increasing the current year’s minimum wage rate by the rate of inflation,” that’s how.
That’s what the word “by” in this context means; the clause following it describes the method for achieving the intent stated in the clause that precedes it.
mWage := mWage + (mWage * CPIW);
Perhaps there is indeed a tension between the stated method and the stated intent, but the method is perfectly clear, despite McKenna’s elaborate effort to distract the reader with formulas and graphs… so clear that Oregon, which modeled its statute after ours, has already announced that its minimum wage will rise. One could even make a perfectly reasonable argument that the statute should behave as McKenna claims it does… but if so… well… that’s the sorta stuff that happens when we legislate via citizens initiative, and if the Legislature agrees that the statute needs to be fixed, they are always free to do so.
But Attorney General Rob McKenna should not be free to reinterpret the law by fiat.