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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.

One Comment

  1. Posted February 28th, 2013 at 6:23 AM | Permalink

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

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