Cascadia Advocate

A Superior Court judge in Kittitas County has turned back a constitutional challenge to I-1433 filed by several trade associations, leaving new requirements for paid leave and increases to the state’s minimum wage in place.

“[T]his Court is of the opinion that the Plaintiffs have failed to establish that I-1433 has violated the Washington State Constitution in any manner. Accordingly, summary judgment will be entered for the State by separate order, filed this state,” wrote Judge Scott R. Sparks in a letter to counsel accompanying his ruling.

Sparks was asked to find I-1433 unconstitutional on multiple grounds by three couples and the following alliance of trade associations.

• The (ardently right wing) National Federation of Independent Business
• The Washington Farm Bureau
• The Washington Retail Association
• The Northwest Food Processors Association
• The Washington Food Industry Association

Plaintiffs were represented by Phil Talmadge, a former Supreme Court justice who has since returned to private practice and helped decide the landmark ATU case.

(ATU, or Amalgamated Transit Union v. State, was the decision that resulted in Tim Eyman‘s I-695 being struck down as unconstitutional due to having violated the Washington State Constitution’s single subject rule.)

The State of Washington, which defends voter-approved initiatives, was represented by Callie Castillo and Rebecca Glasgow of Attorney General Bob Ferguson’s office.

After hearing oral arguments on April 21st and considering the briefs submitted by counsel, Sparks granted summary judgment to the State of Washington, upholding I-1433 as constitutional. The coalition that sponsored I-1433, Raise Up Washington (which includes NPI — we proudly gathered signatures for the initiative), intervened in the case and was represented by Lynn Allen Award recipient Paul J. Lawrence of Pacifica Law Group with Gregory J. Wong and Alanna E. Peterson.

Talmadge argued that I-1433 couldn’t be constitutional because its minimum wage and paid leave provisions lacked rational unity.

“I-1433’s title is restrictive in scope,” argued Talmadge in his initial complaint. “It addresses two distinct issues – the minimum wage and ‘sick leave’. As the ballot title is restrictive, 1-1433 fails article II ,§ 9’s one-subject mandate as it carves out two distinct subject matters – increasing the minimum wage and addressing ‘sick leave’.”

Judge Sparks disagreed.

“I-1433 deals with a general subject, labor standards. The ballot title specifically gave the public notice that the law dealt with the minimum wage, paid sick leave, and related laws. Inquiring minds were put on notice that the minimum wage and paid sick leave were on the ballot. The Plaintiffs have failed to establish that the subject in title test of Article II, § 19 was violated beyond a reasonable doubt.”

Talmadge also argued that I-1433 was invalid because it amended previously enacted statutes pertaining to employee leave without referencing them as the Constitution requires. Sparks rejected this argument too.

“Plaintiffs argue that 1-1433 modified the various employee leave laws by implication yet never set forth those existing laws at full length,” noted the judge.

“However, rather than expressly modifying various employee leave laws, I-1433 set forth a new category of employee leave that heretofore had not existed in this State: mandatory paid ‘sick’ leave. While it is true that the definition of ‘sick leave’ included other types of employee leave that previous to I-1433 were not known as sick leave, those existing leave laws did not require said leave to be compensated.”

“Accordingly, I­-1433 was complete, independent, and stood alone on the particular subject of paid sick leave. The Plaintiffs have not established beyond a reasonable doubt that I-1433 violated Article II, § 37 of the Washington Constitution.”

Sparks’ ruling represents a complete defeat for Talmadge and his clients. They had filed their case in Kittitas County Superior Court in the hopes of securing a favorable opinion at the trial court level (a practice colloquially known as forum shopping) so as to be in a stronger position when the case reached the Supreme Court on appeal. But they didn’t win. So if there’s going to be an appeal, they’ll have to file it.

The business groups funding this lawsuit would be better served by simply pulling the plug on this challenge and urging their employer-members to simply pay their workers as the law requires. Appealing to the state Supreme Court really doesn’t make sense, especially when the Court ruled two years ago in Filo Foods that SeaTac’s similar minimum wage and paid leave initiative was constitutional.

Appropriately, Sparks cited and quoted from the Filo Foods ruling in his letter to counsel explaining his decision to grant the state summary judgment.

We’ve seen some grumbling on social media coming from the other side in response to this decision, which is to be expected. Right wing commentators have asked how I-1433 can be constitutional when Tim Eyman’s I-695 wasn’t, for example.

The answer to that particular question is that I-1433’s provisions are defensibly related, whereas I-695’s provisions lacked rational unity.

Eyman’s I-695 tried to do two very different things: repeal the statewide motor vehicle excise tax, or MVET, and require a public vote for any future revenue increase. Eyman stuffed the second provision in because he wanted two initiatives for the price of one. He was logrolling. Accordingly, I-695 was found unconstitutional.

I-1433 does not suffer from I-695’s defect. The measure has a single subject, labor standards, and a single purpose: bolster pay for Washington’s families. This single purpose is accomplished with two strategies, but those strategies are related. Increasing the minimum wage and requiring employers to provide paid leave for workers both result in better-compensated workers and better working conditions. The initiative therefore complies with Article II, Section 19 (the single subject rule).

Curiously, as Judge Sparks observed, Article II, Section 19 itself contains two provisions. It requires, firstly, that a statute embrace only one subject, and secondly, that the statute’s subject shall be expressed in its title. However, as the Constitution is the supreme law of the land, that inconsistency is just an amusement.

I-1433’s sponsors took care to ensure that the measure they would eventually pour substantial resources into was well-drafted before finalizing it, because they wanted it to stand as thoughtfully written law. And that legwork paid off.

Unlike Tim Eyman’s initiatives, there is no malice underpinning I-1433. The initiative doesn’t try to subvert our Constitution or wreck government. It simply requires a minimum threshold of compensation for Washington’s workers.

Tim Eyman could have decided after the ATU case to respect the Constitution when coming up with future schemes. But he chose not to. Eyman greatly resents the limitations that the Constitution places on the initiative power, and has relished putting initiatives in front of the people that attempt to defy those limitations. He has set the stage for his own court losses many, many times.

For Eyman, initiatives are not so much a means to an end as a way of life. Eyman must always have an initiative to sell, even when he doesn’t have the money to get on the ballot. Consequently, Eyman is soliciting contributions from his followers right now for an initiative he knows isn’t going anywhere (I-1550).

For us, initiatives are a tool for bypassing a gridlocked Legislature and raising up everyone. That’s why we happily supported the development and qualification of I-1433. This initiative isn’t just good for Washington’s workers — it’s good for Washington’s businesses, too. When states take steps to make their economies more inclusive, that results in a better business climate and broader prosperity.

As the late Senator Paul Wellstone said, we all do better when we all do better.