NPI's Cascadia Advocate

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

Wednesday, February 27th, 2013

Ruling coming tomorrow on constitutionality of Tim Eyman’s I‑960/I‑1053/I‑1185

The Wash­ing­ton State Supreme Court sig­naled today that it plans to issue a rul­ing tomor­row morn­ing in League of Edu­ca­tion Vot­ers, et al. v. State of Wash­ing­ton, et al, the all-impor­tant legal chal­lenge to Tim Eyman’s I‑1053 filed in June 2011 by a group of Demo­c­ra­t­ic law­mak­ers, par­ents, and teachers.

In a notice on its web­site, the Court let it be known that a deci­sion in the case is expect­ed to be filed on Feb­ru­ary 28th, 2013. The Court usu­al­ly releas­es opin­ions on its web­site a lit­tle after 8 AM on Thurs­day mornings.

When the Court says it antic­i­pates releas­ing a deci­sion in a case, it almost always fol­lows through, so it is a fair­ly safe bet that we’ll have a rul­ing to look over (and talk about) with­in eigh­teen hours. That makes tomor­row — Feb­ru­ary 28th, 2013 — a very impor­tant day in our state’s history.

LEV v. State is the fourth in a series of legal chal­lenges to Ini­tia­tive 601 and its clones (I‑960, I‑1053, and I‑1185). I‑601, nar­row­ly passed by Wash­ing­ton vot­ers in 1993, decreed that any action that rais­es rev­enue for the state’s trea­sury must receive a two-thirds vote of both the House and the Sen­ate in order to become law.

After the elec­tion was cer­ti­fied, a coali­tion rep­re­sent­ed by Paul Lawrence went to court to have I‑601 struck down as uncon­sti­tu­tion­al, but the law­suit, known as Walk­er, was dis­missed on a technicality.

I‑601 remained on Wash­ing­ton’s books for more than a decade, though it was sus­pend­ed on a cou­ple of occa­sions by the Legislature.

In 2003, a decade after I‑601 was on the bal­lot, Tim Eyman attempt­ed to qual­i­fy a sim­i­lar ini­tia­tive to the Wash­ing­ton State bal­lot — I‑807.

How­ev­er, Eyman found him­self with­out a wealthy bene­fac­tor that year, and the I‑807 sig­na­ture dri­ve was unsuccessful.

Four years lat­er, Eyman tried again, this time flush with cash from Wood­inville mul­ti­mil­lion­aire Michael Dun­mire, As Eyman was com­plet­ing his sig­na­ture dri­ve, Future­wise and SEIU 775NW filed a law­suit seek­ing to block the ini­tia­tive from going on the bal­lot, owing to its con­sti­tu­tion­al defects. This case was also dis­missed on a tech­ni­cal­i­ty, leav­ing the ques­tion as to whether the two-thirds require­ment was uncon­sti­tu­tion­al unre­solved again. I‑960 nar­row­ly passed a few months later.

In 2008, then-Sen­ate Major­i­ty Leader Lisa Brown appealed direct­ly to the Supreme Court to resolve the con­sti­tu­tion­al­i­ty of I‑601/I‑960. She asked the Court to com­pel Lieu­tenant Gov­er­nor Brad Owen to rule I‑960 uncon­sti­tu­tion­al. But the Court deter­mined that her suit had been improp­er­ly brought, and refused to grant the writ of man­damus she had request­ed. Instead, the court dis­missed the case.

The next year, the Leg­is­la­ture vot­ed to sus­pend I‑960 so that it could respond to that year’s bud­get short­fall with a mix of rev­enue increas­es and cuts, instead of just cuts. Eyman, mean­while, got anoth­er I‑601 clone to the bal­lot (I‑1053) with the help of big banks and oil com­pa­nies, and vot­ers passed it in Novem­ber of 2010.

I‑1053 was then chal­lenged in June 2011. It is this legal chal­lenge that is being decid­ed tomor­row. Though it is pos­si­ble that LEV will be dis­missed on a tech­ni­cal­i­ty, we believe such an out­come to be unlikely.

Paul Lawrence and his team, who rep­re­sent the plain­tiffs in LEV, did their home­work pri­or to fil­ing their case. The issue at hand is def­i­nite­ly jus­ti­cia­ble, and the plain­tiffs clear­ly have stand­ing, as King Coun­ty Supe­ri­or Court Judge Bruce Heller deter­mined last year when he struck I‑1053 down in its entirety:

The par­ties in this mat­ter plain­ly have gen­uine­ly and oppos­ing inter­ests, and a judi­cial rul­ing on the con­sti­tu­tion­al­i­ty of the super­ma­jor­i­ty and manda­to­ry ref­er­en­dum require­ments will con­sti­tute a final and con­clu­sive res­o­lu­tion of this dis­pute. There­fore, the two remain­ing issues are (1) whether the con­sti­tu­tion­al issues pre­sent­ed are “actu­al” or mere­ly hypo­thet­i­cal and (2) whether plain­tiffs have stand­ing to bring this lawsuit.


Plain­tiffs have estab­lished stand­ing to bring this action. A plain­tiff has stand­ing to chal­lenge a statute’s con­sti­tu­tion­al­i­ty if he or she can show that (1) the “inter­est sought to be pro­tect­ed . . is arguably with­in the zone of inter­ests to be pro­tect­ed or reg­u­lat­ed by the statute or con­sti­tu­tion­al guar­an­tee in ques­tion” and (2) a “suf­fi­cient fac­tu­al injury.” Seat­tle School Dist., 90 Wn.2d at 493–94. The leg­is­la­tor plain­tiffs have an inter­est in advanc­ing bills through the leg­isla­tive process with the con­sti­tu­tion­al­ly required num­ber of votes. The non-leg­is­la­tor plain­tiffs have an inter­est in the ade­quate fund­ing of edu­ca­tion. The leg­is­la­tor plain­tiffs allege that they have suf­fered injury because they have been unable to address fund­ing gaps in edu­ca­tion. The plain­tiffs from the edu­ca­tion­al com­mu­ni­ty allege that cuts in edu­ca­tion­al fund­ing and ser­vices have result­ed in sub­stan­tial harm to edu­ca­tors, teach­ers, stu­dents and edu­ca­tion groups, such as the plain­tiffs. Plain­tiffs Kim Biel­s­ki and Ryan Painter, for exam­ple, are teach­ers who lost their jobs as a result of bud­get cuts.

Heller’s deci­sion was expect­ed to be appealed to the state Supreme Court by the los­ing par­ty. As the case went against Rob McKen­na and his solic­i­tor gen­er­al Mau­reen Hart, they filed the appeal.

The Supreme Court agreed to take the case over the sum­mer, but it notably refused to grant McKen­na’s request for a stay — thus let­ting Heller’s well-writ­ten and well-rea­soned deci­sion stand for the time being.

On Sep­tem­ber 25th, the Supreme Court heard oral argu­ment in the case. Just a few weeks lat­er, vot­ers approved I‑1185, anoth­er I‑601 clone spon­sored by Eyman and again fund­ed by big oil com­pa­nies, includ­ing BP, Shell, and Tesoro. I‑1185 became law in Decem­ber, but if I‑1053 is struck down tomor­row — as we hope it will be — I‑1185 will be wiped out too, for it is a near car­bon copy of I‑1053.

No mat­ter what tomor­row’s deci­sion says, it will pro­found­ly affect our state’s future. This is a case of mon­u­men­tal impor­tance. Noth­ing less that the integri­ty of our democ­ra­cy is at stake.

More than a cen­tu­ry ago, our state’s found­ing fathers gave us a plan of gov­ern­ment prin­ci­pal­ly mod­eled on the one devised at the Con­sti­tu­tion­al Con­ven­tion in Philadel­phia in 178 by Ben­jamin Franklin, George Wash­ing­ton, James Madi­son, and sev­er­al dozen oth­er ear­ly Amer­i­can leaders.

That plan, our state Con­sti­tu­tion, states emphat­i­cal­ly in Arti­cle II, Sec­tion 22 that a major­i­ty vote shall decide the fate of bills before the two hous­es of our state’s leg­isla­tive body. By major­i­ty, the founders meant greater than fifty per­cent — no more, no less — because no oth­er thresh­old would be appropriate.

Our Leg­is­la­ture is sup­posed to be a rep­re­sen­ta­tive body; we choose its mem­bers in free and fair elec­tions. But the Leg­is­la­ture can­not tru­ly be a rep­re­sen­ta­tive body if it is not oper­at­ing demo­c­ra­t­i­cal­ly. Our founders knew this.

That’s why they wrote Arti­cle II, Sec­tion 22.

Tim Eyman, the Wash­ing­ton Pol­i­cy Cen­ter, Rob McKen­na, and the Seat­tle Times edi­to­r­i­al board have all argued that Arti­cle II, Sec­tion 22 sets only a min­i­mum thresh­old for the pas­sage of bills, and that there­fore, I‑601 and its clones pass con­sti­tu­tion­al muster since those mea­sures only raise the threshold.

But by that absurd log­ic, an ini­tia­tive requir­ing a nine­ty per­cent or one hun­dred per­cent vote for cer­tain types of bills would also be constitutional.

The only log­i­cal inter­pre­ta­tion of Arti­cle II, Sec­tion 22 is that it sets a min­i­mum and max­i­mum thresh­old: Greater than fifty per­cent. No more, no less.

As its name sug­gests, the Supreme Court of Wash­ing­ton is our repub­lic’s high­est court of law. Our Con­sti­tu­tion vests the judi­cial pow­er of our state prin­ci­pal­ly in the insti­tu­tion that meets through­out the year in the Tem­ple of Jus­tice in Olympia. It is the Supreme Court’s duty and oblig­a­tion to strike down laws that con­flict with our Con­sti­tu­tion, in order to ensure that our Con­sti­tu­tion is upheld as our high­est law.

For years, the Supreme Court has ducked the ques­tion of whether I‑601 and its clones are con­sti­tu­tion­al. It is our sin­cer­est hope that tomor­row, the Court will take up this ques­tion and resolve it by strik­ing down the two-thirds scheme so that our Leg­is­la­ture can oper­ate demo­c­ra­t­i­cal­ly like our founders intended.

We will be cov­er­ing tomor­row’s deci­sion exten­sive­ly here on The Advo­cate and over at Per­ma­nent Defense. Our cov­er­age will begin as soon as the deci­sion is released tomor­row morn­ing and will con­tin­ue through­out the rest of the day. We invite you to join us for what will tru­ly be a water­shed moment in Wash­ing­ton law and politics.

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One Comment

  1. Have any of his ini­tia­tives held up in court. The dude needs seri­ous legal advise.

    # by Mike Barer :: February 28th, 2013 at 6:23 AM

One Ping

  1. […] the state leg­is­la­ture by forc­ing both hous­es to reach a 23 major­i­ty on any pro­posed tax increase. First enact­ed in 1993, and reit­er­at­ed FOUR sep­a­rate times and approved FOUR sep­a­rate times by the cit­i­zens of Washington […]

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