This morn­ing, King Coun­ty Supe­ri­or Court Judge Mar­shall Fer­gu­son is hear­ing oral argu­ments for and against a request for a pre­lim­i­nary injunc­tion to block Tim Eyman’s incred­i­bly destruc­tive Ini­tia­tive 976 from tak­ing effect on Decem­ber 5th. It’s the first phase of the legal chal­lenge against I‑976 filed by the Garfield Coun­ty Trans­porta­tion Author­i­ty, the City of Seat­tle, King Coun­ty, and a sup­port­ing coali­tion of local gov­ern­ments plus the Amal­ga­mat­ed Tran­sit Union.

Defend­ing I‑976 is the Wash­ing­ton State Attor­ney Gen­er­al’s office, cur­rent­ly head­ed by Bob Fer­gu­son. The office is required by law to defend statewide ini­tia­tives that are passed by the vot­ers, so Fer­gu­son is oblig­ed to take the posi­tion that the mea­sure is con­sti­tu­tion­al and to con­vince the courts of that posi­tion.

Eyman demand­ed that Fer­gu­son turn over the defense of I‑976 to a pri­vate law firm after the suit was filed. Fer­gu­son, a stick­ler for fol­low­ing the law, refused. Fer­gu­son has been a top tar­get of Eyman’s trash talk for years, owing to his work to hold Eyman account­able for repeat­ed­ly vio­lat­ing our pub­lic dis­clo­sure laws.

It is appar­ent from the brief the AGO filed late last week that the pro­fes­sion­als who work in Fer­gu­son’s office are doing their best to try to save I‑976 by mak­ing the best argu­ments they can muster. But that may not be enough, just as Keep Wash­ing­ton Rolling’s war chest was­n’t enough to over­come I‑976’s bad bal­lot title.

The plain­tiffs assert I‑976 has mul­ti­ple con­sti­tu­tion­al defects, and we agree.

If the State were to con­cede that, then there would be noth­ing to argue over — the plain­tiffs would win by default — so the State has tak­en the posi­tion that the ini­tia­tive is con­sti­tu­tion­al. The State has also argued that a pre­lim­i­nary injunc­tion bar­ring I‑976’s imple­men­ta­tion would be unwar­rant­ed.

Echo­ing com­ments made by spon­sor Tim Eyman on Novem­ber 7th, the State’s brief argues that I‑976 is essen­tial­ly a clone of Eyman’s 2002 ini­tia­tive, I‑776, which was par­tial­ly upheld by the State Supreme Court in Pierce Coun­ty v. State, and there­fore the legal chal­lenge to I‑976 should be reject­ed.

The brief states:

As an ini­tial mat­ter, Plain­tiffs can­not show that I‑976 is uncon­sti­tu­tion­al beyond a rea­son­able doubt because our Supreme Court already reject­ed near­ly all of their argu­ments as to a very sim­i­lar mea­sure. Ini­tia­tive 776, enact­ed by the vot­ers in 2002, adopt­ed many of the same poli­cies embod­ied in I‑976: lim­it­ing state vehi­cle license fees to $30 and repeal­ing author­i­ty for local gov­ern­ments to impose cer­tain vehi­cle fees and tax­es.

This is the first of a num­ber of argu­ments in the brief that do not hold water.

Using Draftable, our team at NPI pub­lished the text of Ini­tia­tives 776 and 976 side by side so that any­one who wants to can com­pare the mea­sures for them­selves. While both mea­sures were def­i­nite­ly mar­ket­ed by the same indi­vid­ual using the same bumper stick­er slo­gan, they are very dif­fer­ent in terms of pol­i­cy specifics.

For exam­ple, with respect to scope, I‑776 tar­get­ed for repeal Sound Tran­sit’s motor vehi­cle excise tax and local MVETs in four coun­ties: King, Sno­homish, Dou­glas, and Pierce. I‑976 tar­gets a much broad­er slew of tax­es and fees.

In addi­tion to Sound Tran­sit’s MVET, I‑976 seeks to repeal:

• state-lev­el motor vehi­cle weight fees
• the state-lev­el motor home (RV) vehi­cle weight fee
• the state-lev­el sup­ple­men­tal sales tax on retail car sales
• city-lev­el trans­porta­tion ben­e­fit dis­trict fees on vehi­cles
• pas­sen­ger fer­ry dis­trict fees on vehi­cles (note that none cur­rent­ly exist)

And with respect to Sound Tran­sit’s MVET, I‑976 is word­ed quite dif­fer­ent­ly from I‑776. The Supreme Court held that I‑776 was con­sti­tu­tion­al on Arti­cle II, Sec­tion 19 (sin­gle sub­ject) grounds because I‑776’s lan­guage per­tain­ing to Sound Tran­sit’s bond oblig­a­tions was mere­ly “pre­ca­to­ry” (lack­ing legal effect).

The pro­vi­sions in I‑976 that con­cern Sound Tran­sit’s bonds are not pre­ca­to­ry and are not housed in the ini­tia­tive’s intent sec­tion as I‑776’s are. Con­se­quent­ly, I‑976 can­not be upheld on the basis that I‑776 was six­teen years ago.

The brief also argues that in adopt­ing I‑976, vot­ers (well, some vot­ers: the major­i­ty did­n’t vote at all) made a pol­i­cy choice that should be hon­ored.

More broad­ly, the whole premise of Plain­tiffs’ harm argu­ment is that I‑976 should be enjoined to pre­vent them from los­ing mon­ey, but enjoin­ing I‑976 will sim­ply mean that oth­ers — Wash­ing­ton tax­pay­ers — lose that same amount of mon­ey, mon­ey they will save if I‑976 is allowed to take effect. Giv­en that Wash­ing­ton vot­ers approved I‑976 and the pol­i­cy con­se­quence of reduc­ing tax­es and fees flow­ing from tax­pay­ers to pub­lic agen­cies, this con­se­quence can­not be seen as a “harm,” but rather pre­cise­ly what the peo­ple vot­ed to adopt. The equi­ties thus tip strong­ly against grant­i­ng injunc­tive relief.

The above seems more like a polit­i­cal argu­ment than a legal argu­ment. It resem­bles state­ments that Dori Mon­son has made on his show in sup­port of I‑976.

The notion that tax­pay­ers will save mon­ey if I‑976 is imple­ment­ed is wrong. Wash­ing­ton tax­pay­ers will save noth­ing from I‑976; the mea­sure is a recipe for more traf­fic, more pol­lu­tion, and more inequity in our tax code, not to men­tion high­er vehi­cle main­te­nance costs from dri­ving on roads that aren’t being prop­er­ly cared for. These con­se­quences went entire­ly unmen­tioned in the bal­lot title that the AGO cre­at­ed for the ini­tia­tive, which Tim Eyman picked as the title he want­ed vot­ers to see after he went bal­lot title shop­ping in the spring of 2018.

As the plain­tiffs have argued, there will be harms — sig­nif­i­cant harms — if I‑976 is imple­ment­ed and it is entire­ly rea­son­able for the courts to put I‑976 on hold until its con­sti­tu­tion­al­i­ty (or lack there­of) is deter­mined.

Lat­er on, the brief tries to make excus­es for the lan­guage of the I‑976 bal­lot title, which is one-sided, dis­hon­est, and unrep­re­sen­ta­tive of I‑976’s pro­vi­sions.

Plain­tiffs claim that the title mis­led vot­ers into think­ing that any “vot­er-approved charges in excess of $30 would be retained, or that at least vot­ers would retain the author­i­ty to approve such vehi­cle charges.” […] But that is not what the title said.

The title first clear­ly informs vot­ers that the mea­sure would broad­ly “repeal, reduce, or remove author­i­ty to impose cer­tain vehi­cle tax­es and fees,” with­out men­tion­ing or exempt­ing vot­er-approved charges. In a sep­a­rate clause, the title then explains that one spe­cif­ic type of vehi­cle fee, “annu­al motor-vehi­cle-license fees,” would be lim­it­ed “to $30, except vot­er-approved charges.”

The title thus did not say that all exist­ing vehi­cle tax­es and fees above $30 would con­tin­ue if vot­er approved, nor that vot­ers in the future could broad­ly increase vehi­cle tax­es or fees beyond $30; both the lim­it and the vot­er-approval option are spe­cif­ic to the fee men­tioned in that clause, “motor-vehi­cle-license fees.”

Although space lim­i­ta­tions did not per­mit the bal­lot title to detail how a “motor-vehi­cle-license fee” is defined, or how and when this excep­tion for “vot­er-approved charges” might arise, it was suf­fi­cient to give notice that would lead to an inquiry into the text of the ini­tia­tive.

Wrong! There is noth­ing clear about the I‑976 bal­lot title. It does inform vot­ers what the mea­sure actu­al­ly does. It’s a bad bal­lot title… a very bad title.

I emphat­i­cal­ly dis­agree that the title’s word­ing was “suf­fi­cient to give notice that would lead to an inquiry into the text of the mea­sure.”

If I was asked to include this lan­guage in one of our research polls to ascer­tain vot­er opin­ions about vehi­cle fees, I would reject it with­out a sec­ond thought. It’s tru­ly appalling that this was the only lan­guage that vot­ers saw on their bal­lots.

For ref­er­ence, here is the title in its entire­ty:

Let’s break it apart, shall we?

The first part of the title says that I‑976 con­cerns “motor vehi­cle tax­es and fees”. Actu­al­ly, it con­cerns a lot more than that. It con­cerns mul­ti­modal trans­porta­tion infra­struc­ture fund­ing. It con­cerns the integri­ty of the state’s trans­porta­tion bud­get. It con­cerns what ought to hap­pen to tax rev­enue that has been pledged to repay bonds, which are con­sti­tu­tion­al­ly pro­tect­ed from being impaired.

It would have been more accu­rate to say that I‑976 con­cerns trans­porta­tion fund­ing because all of the tax­es and fees tar­get­ed by the ini­tia­tive sup­port trans­porta­tion-relat­ed accounts at the state, region­al, and local lev­els.

The sec­ond part of the title is the con­cise descrip­tion. This begins with the phrase “This mea­sure would repeal, reduce, or remove author­i­ty to impose cer­tain vehi­cle tax­es and fees.” Which tax­es and fees are affect­ed? The title does­n’t say. Instead, it uses the word “cer­tain”, which is entire­ly unhelp­ful. It’s as clear as mud.

Next is the bit “lim­it annu­al motor-vehi­cle-license fees to $30, except vot­er-approved charges.” This bit is entire­ly dis­hon­est, as I‑976 does not lim­it annu­al motor vehi­cle license fees to $30 for any­one and even Tim Eyman admits this. Nor does it exempt vot­er-approved charges from the sup­posed thir­ty dol­lar lim­i­ta­tion.

The State con­cedes in its brief that “space lim­i­ta­tions” did not allow “motor vehi­cle license fees” to be defined, but argues, as not­ed above, that “it was suf­fi­cient to give notice that would lead to an inquiry into the text of the ini­tia­tive.”

How so?

The phras­es “motor vehi­cle tax­es and fees” (from the state­ment of sub­ject) and “motor-vehi­cle-license-fees” (from the con­cise descrip­tion) are almost iden­ti­cal.

The only dif­fer­ence is the word the pres­ence of the word “license” in phrase num­ber two. The State’s posi­tion is essen­tial­ly that the inclu­sion of this one dif­fer­ent word is suf­fi­cient to enable vot­ers to under­stand that the phrase refers to only “one spe­cif­ic type” of vehi­cle fee, as opposed to a whole range of vehi­cle fees.

Sor­ry, but nope. This argu­ment fails.

In juris­dic­tions like Seat­tle, vot­er-approved fees that sup­port trans­porta­tion ben­e­fit dis­tricts are paid annu­al­ly to renew a vehi­cle’s reg­is­tra­tion.

The phrase “lim­it annu­al motor-vehi­cle-license fees to $30, except vot­er-approved charges” does not dif­fer­en­ti­ate between juris­dic­tions and it does­n’t even dif­fer­en­ti­ate between dif­fer­ent types of state fees.

There is actu­al­ly more than one type of vehi­cle fee with “license” in the name at the state lev­el. There’s the “license/registration” fee, the “license ser­vice” fee, and then there also are “license plate” fees. Con­fus­ing? You betcha!

How on earth are vot­ers sup­posed to know what this bal­lot title is refer­ring to?

Even the Depart­ment of Licens­ing avoids using the prob­lem­at­ic lan­guage “motor vehi­cle license fee” to the extent it can because it’s a recipe for con­fu­sion: it could be con­flat­ed with fees paid to obtain or renew a dri­ver’s license.

The DOL “Vehi­cles” sec­tion and “Vehi­cles” spe­cif­ic nav­i­ga­tion menu instead uses the phras­es “tabs,” “car tabs,” “reg­is­ter your vehi­cle,” etc.:

How to renew your tabs
Reg­is­ter your vehi­cle
Change your name or address
Buy­ing a vehi­cle
Sell­ing a vehi­cle
Lost tabs, plates, or titles
License plates
Titles
Fees, tax­es, and dona­tions

“License” appears only in one DOL menu item, “license plates”.

Plates are phys­i­cal objects that go on cars as opposed to fees paid to the Depart­ment, so that menu item is not as prob­lem­at­ic. But imag­ine if the first link said “How to renew your license”. Most peo­ple would like­ly think that meant their dri­ver’s license, as opposed to their vehi­cle’s reg­is­tra­tion. Adding the words “motor vehi­cle” might lessen the con­fu­sion a bit. But it would still be con­fus­ing.

In a pre­vi­ous post here on the Cas­ca­dia Advo­cate, I dis­cussed how the bal­lot title could have been bet­ter, and came up with the fol­low­ing as a first draft of a more defen­si­ble bal­lot title that could stand up to scruti­ny:

Ini­tia­tive Mea­sure No. 976 con­cerns trans­porta­tion fund­ing.

This mea­sure would elim­i­nate motor vehi­cle fees sup­port­ing state and local trans­porta­tion improve­ments. Vehi­cle fees would be lim­it­ed to $30, cost­ing an esti­mat­ed $4.2 bil­lion in fund­ing for projects and ser­vices through 2025.

Should this mea­sure be enact­ed into law? Yes [ ] No [ ]

Even the above is still prob­lem­at­ic because I‑976 does­n’t actu­al­ly lim­it vehi­cle fees to thir­ty dol­lars. So here’s a sec­ond, more pol­ished draft:

Ini­tia­tive Mea­sure No. 976 con­cerns trans­porta­tion fund­ing.

This mea­sure would low­er or abol­ish sev­er­al dif­fer­ent tax­es and fees on motor vehi­cles sup­port­ing state or local trans­porta­tion improve­ments, elim­i­nat­ing an esti­mat­ed $4.2 bil­lion in fund­ing for projects and ser­vices through 2025.

Should this mea­sure be enact­ed into law? Yes [ ] No [ ]

This ver­sion gets rid of the prob­lem­at­ic, decep­tive ref­er­ence to a fake thir­ty dol­lar lim­i­ta­tion and instead informs vot­ers that the mea­sure will low­er a bevy of tax­es and fees on motor vehi­cles, but at a sig­nif­i­cant cost.

The thir­ty word lim­i­ta­tion on the length of the con­cise descrip­tion (which only applies to statewide mea­sures, not local ones) is huge­ly prob­lem­at­ic because it forces bal­lot title writ­ers in the Attor­ney Gen­er­al’s Office to leave out impor­tant details. The length needs to be altered to per­mit more descrip­tive bal­lot titles.

Judge Mar­shall Fer­gu­son has indi­cat­ed that after hear­ing oral argu­ment, he will take a lit­tle time to fur­ther review the briefs and issue a writ­ten rul­ing either this after­noon or some­time tomor­row. We’ll keep you post­ed.