NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Tuesday, December 6th, 2011

Teamsters, UFCW file legal challenge seeking to have Costco’s I‑1183 overturned

Two unions that rep­re­sent work­ing fam­i­lies who would be adverse­ly harmed by the imple­men­ta­tion of Cost­co’s Ini­tia­tive 1183 filed suit today in King Coun­ty Supe­ri­or Court seek­ing to have the mea­sure strick­en in its entire­ty as uncon­sti­tu­tion­al.

Team­sters Local 174 and UFCW Local 21 con­tend that I‑1183 vio­lates Arti­cle II, § 19 of Wash­ing­ton’s Con­sti­tu­tion, which is bet­ter known as the “sin­gle sub­ject” rule. Sec­tion 19 (which applies to all leg­is­la­tion, includ­ing leg­is­la­tion pro­posed by the peo­ple by the cor­po­ra­tions through the ini­tia­tive process, states:

BILL TO CONTAIN ONE SUBJECT. No bill shall embrace more than one sub­ject, and that shall be expressed in the title.

The unions’ thir­teen-page com­plaint (PDF) charges that I‑1183 vio­lates the sin­gle-sub­ject rule in mul­ti­ple instances. As they put it: “I‑1183 is draft­ed such that those vot­ing on it are required to vote for mul­ti­ple sub­jects… in order to obtain approval of an unre­lat­ed sub­ject, the pri­va­ti­za­tion of hard liquor.”

In oth­er words: I‑1183 is a mess. It’s so poor­ly draft­ed, it does­n’t even com­ply with con­sti­tu­tion­al require­ments that spec­i­fy the prop­er form for leg­is­la­tion. That’s what the Team­sters and UFCW are alleg­ing.

“Our democ­ra­cy is threat­ened when one cor­po­ra­tion like Cost­co can write a com­plex ini­tia­tive, pay for the sig­na­tures, pay for the ads that con­trol the debate, all the while avoid­ing dis­cus­sion on the oth­er parts of the pro­pos­al that are the true moti­va­tions by the cor­po­ra­tion in the first place,” said Tom Geiger, UFCW’s Com­mu­ni­ca­tions Direc­tor, in a state­ment announc­ing the law­suit.

Back­ers of liquor pri­va­tion are sure to cry foul over this law­suit — no doubt some of them will por­tray it as an eleventh hour act of des­per­a­tion by the losers of the most expen­sive fight over a bal­lot mea­sure in state his­to­ry. But it’s actu­al­ly not unusu­al for con­tro­ver­sial ini­tia­tives enact­ed by vot­ers to be chal­lenged in court.

Any­one who is famil­iar with case law sur­round­ing ini­tia­tives in Wash­ing­ton knows that our judi­cia­ry has repeat­ed­ly struck down ini­tia­tives for vio­lat­ing the sin­gle sub­ject rule — includ­ing sev­er­al of Tim Eyman’s.

In its 2000 deci­sion affirm­ing Judge Robert Als­dor­f’s rul­ing declar­ing I‑695 to be uncon­sti­tu­tion­al, Wash­ing­ton’s Supreme Court offered a rea­son­ably suc­cinct expla­na­tion of why the sin­gle sub­ject rule is impor­tant.

There are two dis­tinct pro­hi­bi­tions in Arti­cle II, § 19. The first is that no bill shall embrace more than one sub­ject. The pur­pose of this pro­hi­bi­tion is to pre­vent logrolling or push­ing leg­is­la­tion through by attach­ing it to oth­er leg­is­la­tion. The sec­ond pro­hi­bi­tion is that no bill shall have a sub­ject which is not expressed in its title. The pur­pose of this pro­hi­bi­tion is to noti­fy mem­bers of the Leg­is­la­ture and the pub­lic of the sub­ject mat­ter of the mea­sure.

Rules for statu­to­ry con­struc­tion apply to ini­tia­tives as well as bills, as the courts have made clear. But unlike a bill, a pro­posed ini­tia­tive does not have to go through the leg­isla­tive process, which is delib­er­a­tive and exact­ing by nature.

The leg­isla­tive process sub­jects bills to pub­lic hear­ings, dis­cus­sion and debate in com­mit­tee, then more dis­cus­sion or debate on the House or Sen­ate floor. And then anoth­er round of of all of the above in the Leg­is­la­ture’s oth­er cham­ber.

Ini­tia­tives, in con­trast, are only min­i­mal­ly reviewed by the code revis­er and the attor­ney gen­er­al’s office, which comes up with the bal­lot title and bal­lot sum­ma­ry. In order to begin cir­cu­lat­ing peti­tions, a spon­sor must final­ize the lan­guage, and after the lan­guage is final­ized, it can’t be changed — mean­ing that there is no fur­ther oppor­tu­ni­ty for improve­ment.

This is why many ini­tia­tives end up run­ning afoul of the Con­sti­tu­tion: they don’t receive any­where near the same lev­el of scruti­ny that a bill would in the leg­isla­tive process. So cor­rectable flaws are not addressed.

(Oth­er states require more strin­gent review of bal­lot mea­sures. For exam­ple, Utah requires spon­sors to hold a series of pub­lic hear­ings around the state. And Alas­ka requires that an ini­tia­tive be sub­ject to legal review by the state’s Depart­ment of Law before it can move for­ward. We don’t have any such require­ments).

Con­sid­er­ing how bad­ly Cost­co want­ed to win (they set a new record for spend­ing on an ini­tia­tive), it’s sur­pris­ing they did­n’t put more effort into draft­ing I‑1183. They unques­tion­ably had the mon­ey to get a sec­ond (and third… and fourth) legal opin­ion. But evi­dent­ly they did­n’t both­er. We can tell by look­ing at I‑1183. It’s full of holes and ambigu­ous lan­guage. It’s a mess, as I said above.

Cost­co was asked by sev­er­al news orga­ni­za­tions to react to the law­suit ear­li­er today, and it had no imme­di­ate com­ment. How­ev­er, the ware­house giant has since released a state­ment attrib­uted to the polit­i­cal action com­mit­tee it formed to push pri­va­ti­za­tion (the “Yes on 1183 Coali­tion”) decry­ing the law­suit and com­plain­ing that I‑1183’s oppo­nents aren’t respect­ing the will of the vot­ers.

Cost­co’s objec­tions to this law­suit are ground­less. If Cost­co tru­ly cared about the will of the vot­ers, why did­n’t its exec­u­tives just admit defeat after they lost last year (when vot­ers reject­ed not one, but two liquor pri­va­ti­za­tion ini­tia­tives), move on, and let the issue be set­tled? Because obvi­ous­ly they were deter­mined to get what they want­ed. They viewed I‑1100’s fail­ure as a tem­po­rary set­back — tak­ing a page from Tim Eyman’s play­book — and came right back with I‑1183.

They are hard­ly in a posi­tion to crit­i­cize UFCW and the Team­sters for con­tin­u­ing to fight on to pro­tect their mem­bers’ liveli­hoods after los­ing the elec­tion. Espe­cial­ly con­sid­er­ing that they went to court them­selves a few years ago to try to get state laws gov­ern­ing beer and wine sales over­turned (they lost, after many appeals).

We at NPI applaud the fil­ing of this law­suit and we hope it is suc­cess­ful. Aside from the destruc­tive ram­i­fi­ca­tions it has for pub­lic health and pub­lic safe­ty (increased avail­abil­i­ty of hard liquor equals increased con­sump­tion, which trans­lates to more drunk-dri­ving and oth­er crimes involv­ing alco­hol), I‑1183 is a giant rip-off.

I’ll let Kei­th Barnes, the pro­pri­etor of Bain­bridge Organ­ic Dis­tillers, explain — because he’s real­ly put some thought into ana­lyz­ing this.

While it is not usu­al­ly described as such, I con­sid­er Wash­ing­ton State’s liquor busi­ness a state asset.

The busi­ness unit dri­ves rev­enue, col­lects tax­es, secures prod­ucts from man­u­fac­tur­ers, has employ­ees, man­ages retail­ing and dis­tri­b­u­tion and makes prof­its just like every busi­ness hopes to do, with the key dif­fer­ence that the prof­its from the busi­ness go into the state’s fund instead of into the accounts of a pri­vate enter­prise. This makes every res­i­dent in Wash­ing­ton State a de fac­to stake­hold­er in the busi­ness, as all prof­its are used to fund vital state ser­vices.

If the WSLCB [Wash­ing­ton State Liquor Con­trol Board] were pri­vate­ly owned and want­ed to sell off its liquor busi­ness, it would place a val­ue on that busi­ness in the accept­ed man­ner – a mul­ti­ple of earn­ings over a num­ber of years with debt and hard assets fig­ured in. Under I‑1183, the state is expect­ed to sim­ply walk away from the free-stand­ing busi­ness enter­prise that it has spent sev­en­ty-sev­en years build­ing, one that makes con­sis­tent­ly high prof­its that ben­e­fit all stake­hold­er-res­i­dents, while effec­tive­ly man­ag­ing the pub­lic safe­ty con­cerns around alco­hol with­in the top five per­cent in the nation.

If a cabal of tim­ber com­pa­nies includ­ing Plum Creek Tim­ber, Wey­er­haeuser, Tem­ple-Inland and Mead­West­va­co were try­ing to take over state owned tim­ber­lands, and decid­ing amongst them­selves where they were going to cut tim­ber and who was to prof­it most by exploit­ing these state-owned assets, res­i­dents would not stand for it. Like­wise, if a coali­tion includ­ing Exxon Mobil, Chevron and Roy­al Dutch Shell were try­ing to take over con­trol of state owned oil and min­er­al rights and devis­ing their own extrac­tion and prof­it plan there would be demon­stra­tions in the streets.

Barnes con­cludes:

To walk away from this busi­ness, and to hand over the liquor con­ces­sion in Wash­ing­ton State to pri­vate busi­ness­es, with­out due com­pen­sa­tion to state res­i­dents, is not in the best inter­ests of Wash­ing­ton State or its stake­hold­er-res­i­dents. If it is the desire of the res­i­dents of Wash­ing­ton State that the state exit the liquor busi­ness it should do so on its own terms, and to the ben­e­fit of the stakeholder/residents.

By meek­ly allow­ing itself to be forced out of busi­ness with­out being com­pen­sat­ed for the val­ue of the liquor con­ces­sion the state would not be liv­ing up to its respon­si­bil­i­ty to always work in the best inter­ests of the state’s res­i­dents.

I‑1183 is a raw deal, pure and sim­ple. It’s bad for tax­pay­ers, bad for work­ing fam­i­lies, bad for first respon­ders, and bad for our com­mu­ni­ties.

It’s unfor­tu­nate that the cam­paign against I‑1183 (Pro­tect Our Com­mu­ni­ties) was unable to effec­tive­ly counter Cost­co’s decep­tive ad cam­paign.

But the bat­tle is not over. UFCW and the Team­sters are pru­dent­ly car­ry­ing on the fight against I‑1183 in the legal are­na, tak­ing a stand not only for their mem­bers, but for the well-being of all Wash­ing­to­ni­ans.

We are grate­ful to them for not giv­ing up. As we have seen, the right wing does­n’t throw in the tow­el when it los­es — and nei­ther should we.

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6 Comments

  1. “I‑1183 is a raw deal, pure and sim­ple. It’s bad for tax­pay­ers, bad for work­ing fam­i­lies, bad for first respon­ders, and bad for our com­mu­ni­ties.”

    I agree com­plete­ly. Before this ini­tia­tive ever passed it was incred­i­bly dif­fi­cult to pro­cure alco­hol. It was­n’t like you could just walk into a cor­ner store and buy alco­hol. Oh wait.

    Here’s the deal: liquor monop­o­liza­tion by the state was a rea­son­able reac­tion to boot­leg­gers and bath­tub gin cre­ation as a direct result of pro­hi­bi­tion. Peo­ple were lit­er­al­ly killing them­selves to get their fix whether they knew it or not. The eas­i­est way to con­trol sup­ply was to cen­tral­ize it–if mom and pop shops can’t sell liquor then boot­leg­gers can’t move their prod­uct. That era is long gone, and with it the need to con­trol dis­tri­b­u­tion and sale with an iron grip is also gone.

    # by Hurf :: December 7th, 2011 at 10:04 AM
  2. You state:

    “Back­ers of liquor pri­va­tion are sure to cry foul over this law­suit – no doubt some of them will por­tray it as an eleventh hour act of des­per­a­tion by the losers of the most expen­sive fight over a bal­lot mea­sure in state his­to­ry.”

    Yet in your clos­ing para­graphs, you say, “But the bat­tle is not over. UFCW and the Team­sters are pru­dent­ly car­ry­ing on the fight against I‑1183 in the legal are­na, tak­ing a stand not only for their mem­bers, but for the well-being of all Wash­ing­to­ni­ans.”

    Does­n’t that define the nature of a ‘last-ditch effort’??? How is it not? You did­n’t win the right way, so your pool of LCB union resources has been drained to hire a bunch of lawyers to coun­ter­act the will of the large major­i­ty of Wash­ing­to­ni­ans.

    Why don’t you let the full force of vot­ing Wash­ing­to­ni­ans — 1,128,904 of them — live with the choic­es of their OWN well-being, instead of allow­ing a spe­cial-inter­est group that rep­re­sents less than 1,000 gov­ern­ment-employed work­ers deter­mine what they believe is in Wash­ing­ton’s best inter­est?

    What a waste — why not instead spend the time and mon­ey used to pay the lawyers rep­re­sent­ing this law­suit on retrain­ing the dis­placed work­ers so they can get a new job in anoth­er role/field?
    To me, *that* is what is in the best inter­est of the work­ers.…

    If I were an LCB employ­ees union mem­ber, I’d want my dues back…

    # by LW :: December 7th, 2011 at 12:40 PM
    • Well, LW, by your log­ic, Cost­co did­n’t win “the right way” last year either. And look how many resources they drained try­ing to reverse the peo­ple’s ver­dict from Novem­ber of 2010. They sunk tens of mil­lions of dol­lars into I‑1183, most of which went into an extreme­ly expen­sive ad cam­paign. That’s far, far more than UFCW and the Team­sters will be spend­ing on this law­suit.

      If Cost­co could­n’t be both­ered to invest the effort to craft an ini­tia­tive that com­plies with the require­ments of the Wash­ing­ton State Con­sti­tu­tion, it’s their own fault. It’s not like they did­n’t have access to the very best cor­po­rate lawyers to make their lan­guage air­tight.

      Do you seri­ous­ly believe that any of the work­ers whose jobs are in jeop­ardy would rather that their unions help retrain them instead of fight­ing to try to save their jobs? From the per­spec­tive of a work­er, the main ben­e­fit of belong­ing to a union and pay­ing union dues is bet­ter eco­nom­ic secu­ri­ty — includ­ing job secu­ri­ty. Unions are sup­posed to look out for their mem­bers and pro­tect their jobs. That’s what UFCW and the Team­sters are doing.

      # by Andrew :: December 7th, 2011 at 1:02 PM
  3. Oh yeah — most lawyers are 1%‘ers, while all the union mem­bers they rep­re­sent — and are being paid by — are 99%‘s. Talk about the pot call­ing the ket­tle black!

    # by LW :: December 7th, 2011 at 12:44 PM
  4. Cost­co’s 1183 also put one hun­dred and six­ty three small busi­ness­es out in the street. Most are in rur­al areas and pro­vide jobs in small towns. The peo­ple who are in jeop­ardy of los­ing their jobs are not get­ting rich. For many work­ers, a job at a state liquor store was a source of sup­ple­men­tary income that helped pay the bills.

    State liquor care work­ers take great care when mak­ing sales. Work­ers know bet­ter than to sell to minors; the Liquor Con­trol Board care­ful­ly polices our state’s liquor stores. But big box stores? What do they care? They can hire anoth­er clerk if one of their employ­ees sells to a minor. Prof­its are what mat­ter. Pub­lic safe­ty is no big deal to them.

    Edi­tor’s note: This com­ment has been edit­ed by NPI.

    # by Sharon Shining :: December 7th, 2011 at 11:05 PM
  5. Andrew,

    Thanks for the response.

    As far as Cost­co ‘revers­ing’ the peo­ple’s ver­dict, they sim­ply got the mes­sage that there were real prob­lems with I‑1100 and I‑1105, and rewrote for 1183 in a way that the peo­ple could sup­port. Sure, they and oth­er ‘big cor­po­ra­tions’ stand to ulti­mate­ly gain from pri­va­ti­za­tion, but it’ll take more than 10 years for Cost­co to break even on their ad cam­paign and sup­port for 1183. And as always, don’t for­get that ‘big cor­po­ra­tions’ are com­prised of hard-work­ing peo­ple, too, who have their own inter­ests invest­ed in their orga­ni­za­tion’s well-being as well.

    Cost­co brings mil­lions of dol­lars of com­merce AND tax rev­enue to the Puget Sound region. If their busi­ness is healthy enough to sup­port I‑1183 — with the sup­port from their stock­hold­ers and employ­ees — then that’s their busi­ness call to make.

    Like­wise, it cer­tain­ly is the right of the UFCW and Team­sters to allo­cate their mem­bers’ dues to what­ev­er they deem is most ben­e­fi­cial to their mem­bers.

    But I can tell you, IF the UFCW some­how wins this law­suit and I‑1183 is held up or over­turned, there will be a lot of very unhap­py and resent­ful cus­tomers vis­it­ing the state-run stores that they vot­ed to see closed. I would not want to be a clerk in one of those stores.…

    Ulti­mate­ly, the peo­ple of Wash­ing­ton want liquor sales to be pri­va­tized. That fact can­not be dis­put­ed. If the UFCW and its mem­bers stop I‑1183, anoth­er ini­tia­tive for pri­va­ti­za­tion will even­tu­al­ly be pro­posed and like­ly be passed (again!). Then your mem­bers will be out of a job (again!). Mon­ey spent fight­ing I‑1183 today will have been squan­dered.

    A wis­er move for the UFCW would be to acknowl­edge the deci­sion of Wash­ing­to­ni­ans and invest in their mem­ber’s best long-term inter­est by prepar­ing them for a Wash­ing­ton with­out state-run liquor stores.

    # by LW :: December 8th, 2011 at 11:36 AM

One Ping

  1. […] Team­sters, UFCW file legal chal­lenge seek­ing to have Costco’s I‑1183 over­turned […]

    Ping from Morning Rundown for December 7th, 2011 :: December 7th, 2011 at 10:23 AM