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.

Thursday, July 30th, 2015

Elected leaders, activists file lawsuit to remove Tim Eyman’s I‑1366 from 2015 ballot

This morn­ing, at a press con­fer­ence at Paci­fi­ca Law Group’s offices in down­town Seat­tle, sev­er­al friends of the North­west Pro­gres­sive Insti­tute announced the fil­ing of a legal chal­lenge to block Tim Eyman’s incred­i­bly destruc­tive I‑1366 from the Novem­ber bal­lot because it exceeds the scope of the peo­ple’s ini­tia­tive pow­er as set forth in Wash­ing­ton’s Constitution.

We released a state­ment prais­ing this law­suit through NPI’s Per­ma­nent Defense ear­li­er today, but this is real­ly impor­tant news, wor­thy of fur­ther analy­sis and com­men­tary, so I’m going to talk about it at greater length here.

I‑1366 — which was cer­ti­fied yes­ter­day for the Novem­ber bal­lot by Sec­re­tary of State Kim Wyman — would slash state sales tax rev­enue by $8 bil­lion over the next six years unless the Leg­is­la­ture agreed to pass a con­sti­tu­tion­al amend­ment sab­o­tag­ing our cher­ished tra­di­tion of major­i­ty rule. Eyman wants to per­ma­nent­ly put the fate of rev­enue deci­sions in the hands of a sub­ma­jor­i­ty of law­mak­ers (sev­en­teen of forty-nine sen­a­tors or thir­ty-three of nine­ty-eight representatives).

This would have the effect of lock­ing in our state’s regres­sive tax sys­tem for all time, pre­vent­ing the Leg­is­la­ture from act­ing to fix our bro­ken tax code. It would sub­vert the Con­sti­tu­tion’s Arti­cle II, Sec­tion 22, dat­ing back to state­hood, which declares that bills shall pass by major­i­ty vote (in oth­er words, greater than fifty percent).

King Coun­ty Elec­tions Direc­tor Sher­ril Huff, Thurston Coun­ty Audi­tor Mary Hall, State Sen­a­tor David Frockt, State Rep­re­sen­ta­tive Reuven Car­lyle, Belle­vue Col­lege stu­dent Paul Bell, Seat­tle par­ent Eden Mack, retired nurse Angela Bar­tels, Sol­id Ground fel­low Tony Lee, and Elder­Care Alliance Chair Jer­ry Reil­ly — the plain­tiffs in the case — agree with us that Eyman’s I‑1366 is not a prop­er initiative.

Eyman’s own false adver­tis­ing sup­ports this con­clu­sion. The head­ing of I‑1366, which you can see above the text, con­tains the words “2/3rds Con­sti­tu­tion­al Amend­ment”. Eyman has also referred to I‑1366 as the “2/3rds Con­sti­tu­tion­al Amend­ment ini­tia­tive”. But there is no such thing, and Eyman knows it.

Arti­cle XXIII of the Wash­ing­ton State Con­sti­tu­tion explains in pret­ty plain lan­guage how amend­ments are made. They must orig­i­nate in the Leg­is­la­ture, and they must receive a two-thirds vote of each house to pass. Then, they are placed before the peo­ple for rat­i­fi­ca­tion, which takes a major­i­ty vote.

This is the only process we have for amend­ing the Con­sti­tu­tion. There is no other.

In neigh­bor­ing Ore­gon, the Con­sti­tu­tion may be amend­ed by bal­lot ini­tia­tive, but not here. The peo­ple who wrote Wash­ing­ton’s Con­sti­tu­tion and who brought direct democ­ra­cy to our state wise­ly real­ized that Wash­ing­ton is first and fore­most a repub­lic. They also knew a healthy democ­ra­cy requires a bal­ance between major­i­ty rule and minor­i­ty rights. That is why the respon­si­bil­i­ty of propos­ing amend­ments to Wash­ing­ton’s Con­sti­tu­tion rests sole­ly with the Legislature.

As Tim Eyman is not one of our elect­ed rep­re­sen­ta­tives, he can’t pro­pose a con­sti­tu­tion­al amend­ment. And since he is not influ­en­tial in the Leg­is­la­ture except among the most extreme mem­bers of the House and Sen­ate Repub­li­can cau­cus­es, he does not have the votes to force through an amend­ment sab­o­tag­ing the Con­sti­tu­tion’s major­i­ty vote require­ment for pas­sage of bills.

Eyman cer­tain­ly has a knack for con­vinc­ing ultra-wealthy right-wing donors to give him mon­ey for mali­cious schemes to destroy our com­mon wealth and wreck our gov­ern­ment, which belong to us, the peo­ple of Wash­ing­ton. But his long his­to­ry of care­less, hyber­bol­ic rhetoric and repeat­ed use of bad pol­i­tics to pur­sue his nefar­i­ous ends have made him very unpop­u­lar. As he has dis­cov­ered, two-thirds is a very high bar. He does­n’t have the votes to get the Supreme Court’s League of Edu­ca­tion Vot­ers deci­sion (which upheld major­i­ty rule in Arti­cle II, Sec­tion 22) overturned.

So he has turned to black­mail. Coer­cion. Extor­tion. All of those words describe the twist­ed, sin­is­ter pur­pose of I‑1366.

Eyman’s hostages are the youth of Wash­ing­ton State, whose edu­ca­tion is imper­iled by his threat to elim­i­nate $8 bil­lion in sales tax rev­enue through 2021 if the House and Sen­ate don’t do as he demands by mid-April of next year.

It is vital that every Wash­ing­ton­ian under­stand that the sales tax pro­vides near­ly half of the rev­enue for our gen­er­al fund, and over half of every dol­lar in the gen­er­al fund goes to either K‑12 schools or to col­leges and universities.

The loss of $8 bil­lion in sales tax rev­enue would dev­as­tate fund­ing for edu­ca­tion in Wash­ing­ton, in vio­la­tion of Arti­cle IX of our Con­sti­tu­tion, which says that the edu­ca­tion of our youth is our para­mount duty as a people.

When he has been asked in inter­views about the destruc­tive impact of the sales tax cut his ini­tia­tive pre­scribes (which we’ll call Sce­nario 1), Eyman has con­sis­tent­ly piv­ot­ed back to talk­ing about what he con­sid­ers to be the mer­its of requir­ing a two-thirds vote to raise rev­enue, because he clear­ly does­n’t want to dwell on the sub­ject of the dread­ful, awful impact of a sud­den and dras­tic cut in the sales tax. Sce­nario 1 is eas­i­ly avoid­ed, Eyman says, if the Leg­is­la­ture opts for Sce­nario 2: Capit­u­la­tion to his demand for a con­sti­tu­tion­al amendment.

But propos­ing con­sti­tu­tion­al amend­ments is the Leg­is­la­ture’s pre­rog­a­tive. It is the House and Sen­ate’s con­sti­tu­tion­al role to orig­i­nate any changes to our state’s high­est law. With I‑1366, Eyman is attempt­ing to do an end run around the Wash­ing­ton State Con­sti­tu­tion by induc­ing the Leg­is­la­ture to intro­duce and vote on the par­tic­u­lar amend­ment he wants under duress.

This is an out­ra­geous abuse of the ini­tia­tive pow­er, which was con­ceived over one hun­dred years ago by Pro­gres­sives to allow the peo­ple of Wash­ing­ton to make, alter, or repeal laws… but not to change our plan of government.

The afore­men­tioned plain­tiffs con­tend that because Eyman’s I‑1366 exceeds the scope of what an ini­tia­tive may con­sti­tu­tion­al­ly be, it should not go before the peo­ple of Wash­ing­ton for a vote. The plain­tiffs are seek­ing an injunc­tion to enjoin Sec­re­tary of State Kim Wyman from plac­ing I‑1366 on the Novem­ber ballot.

As the com­plaint filed by Paci­fi­ca Law Group’s Paul Lawrence, Kym­ber­ly Evan­son, and Sarah Wash­burn fur­ther explains (PDF):

1–1366 was not pro­posed in either house of the leg­is­la­ture, nor approved by two-thirds of both houses.

Rather, 1–1366 was pro­posed by its spon­sors, and imper­mis­si­bly attempts to bypass the process set forth in Arti­cle XXIII and amend the Con­sti­tu­tion via the leg­isla­tive pow­ers in Arti­cle II.

1–1366 uti­lizes the threat of a [sig­nif­i­cant] reduc­tion in sales tax to force the State Leg­is­la­ture to invoke the con­sti­tu­tion­al amend­ment process, an objec­tive that can­not be achieved through the ini­tia­tive pow­er. The threat­ened sales tax reduc­tion would elim­i­nate approx­i­mate­ly $1.4 bil­lion in Wash­ing­ton State sales tax rev­enues per year [begin­ning in 2017, accord­ing to OFM].

The peo­ple act­ing through the ini­tia­tive have no pow­er direct­ly or by force of threat to invoke the con­sti­tu­tion­al amend­ment process.

The suit, filed in King Coun­ty Supe­ri­or Court today, also names Tim Eyman, Mike Fagan, and Jack Fagan (the spon­sors of I‑1366) as defen­dants, in addi­tion to Sec­re­tary of State Kim Wyman. Wyman will assured­ly be rep­re­sent­ed by Attor­ney Gen­er­al Bob Fer­gu­son (it’s his job to defend the state when law­suits are filed). Eyman and the Fagans will be on their own. Though con­sid­er­ing the deep pock­ets they have access to, obtain­ing rep­re­sen­ta­tion ought not to be a problem.

What is the like­li­hood of suc­cess in this case? It’s hard to say, because I‑1366 is unlike any­thing that has qual­i­fied for the bal­lot before.

Eyman has already attacked the law­suit and point­ed out that his­tor­i­cal­ly, Wash­ing­ton’s courts have been reluc­tant to set aside ini­tia­tives pri­or an elec­tion. The Supreme Court has said that a chal­lenge mere­ly on con­sti­tu­tion­al grounds (for instance, the sin­gle sub­ject rule) is only ger­mane after an ini­tia­tive has become law.

How­ev­er, the case filed today does not seek to have I‑1366 blocked sim­ply because it is uncon­sti­tu­tion­al. Rather, the plain­tiffs are argu­ing that I‑1366 should be set aside because it exceeds the scope of the ini­tia­tive pow­er.

It is very impor­tant to under­stand this dis­tinc­tion, because it under­pins the case. As the Paci­fi­ca team not­ed in a let­ter to Attor­ney Gen­er­al Fer­gu­son last week, there is a prece­dent for set­ting aside an ini­tia­tive on scope grounds before an election.

The Supreme Court has rec­og­nized, how­ev­er, that one basis for a pre-elec­tion chal­lenge is where “the sub­ject mat­ter of the ini­tia­tive is beyond the peo­ple’s ini­tia­tive pow­er.” Future­wise v. Reed, 161 Wn.2d 407, 411, 166 P.3d 708, 710 (2007).

To deter­mine the sub­ject mat­ter of an ini­tia­tive, the court looks at the “fun­da­men­tal and over­rid­ing pur­pose” of the ini­tia­tive. Philadel­phia II v. Gre­goire, 128 Wn.2d 707, 719, 911 P.2d 389, 390 (1996).

The “fun­da­men­tal and over­rid­ing pur­pose” of I‑1366, as evi­denced by its title and its adver­tis­ing, is to invoke the process to amend the state con­sti­tu­tion to require a two-thirds leg­isla­tive super­ma­jor­i­ty or a pub­lic vote for approval of any mea­sure that “rais­es taxes”.

The pow­er to invoke the con­sti­tu­tion­al amend­ment process is not part of the Arti­cle II leg­isla­tive pow­er. Rather that pow­er stems from Arti­cle XXIII of the Con­sti­tu­tion. Arti­cle XXIII estab­lish­es a process that is “man­i­fest­ly dis­tinct from that involved in the enact­ment of ordi­nary bills and laws” and requires first that two-thirds of each house of the leg­is­la­ture must agree to sub­mit the pro­posed amend­ment and then it must be approved by a major­i­ty of the voters.

This process, with its inher­ent safe­guards, is the only method by which our state con­sti­tu­tion may be amended.

See Amal­ga­mat­ed Tran­sit Union Local 587 v. State, 142 Wn.2d 183, 232, 11 P.3d 762, 794, 27 P.3d 608 (2001) (The con­sti­tu­tion may not be amend­ed by statute or initiative.).

The Wash­ing­ton Supreme Court has defin­i­tive­ly held that ini­tia­tives which seek to amend the con­sti­tu­tion are not “leg­isla­tive acts” and are there­fore out­side the scope of the ini­tia­tive power.

See Ford v. Logan, 79 Wn.2d 147, 156, 483 P.2d 1247 (1971).

For the same rea­sons cit­ed in Ford, the pow­er to invoke the con­sti­tu­tion­al amend­ment process is out­side the scope of the Arti­cle II leg­isla­tive pow­er. Under these cir­cum­stances, courts have grant­ed injunc­tions to pre­vent the place­ment of improp­er ini­tia­tives on the bal­lot and avoid need­less elections.

See Philadel­phia II, 128 Wn.2d at 709.

The pur­pose of the above-excerpt­ed let­ter to Fer­gu­son was to ask him to rapid­ly ini­ti­ate legal pro­ceed­ings against I‑1366.

Writ­ing on behalf of Fer­gu­son, Deputy Solic­i­tor Gen­er­al Jef­frey Even declined to do so with­in the short time­frame the plain­tiffs gave him, and sug­gest­ed the Paci­fi­ca team take action them­selves on behalf of their clients — which they now have.

The plain­tiffs’ prayer for relief in this case is pret­ty sim­ple and straight­for­ward. It prin­ci­pal­ly asks for a declara­to­ry judg­ment and an injunc­tion to stop I‑1366.

Plain­tiffs request the fol­low­ing relief:

  1. That the Court enter a declara­to­ry judg­ment that 1–1366 exceeds the scope of the ini­tia­tive pow­er and there­fore vio­lates Arti­cle II and Arti­cle XXIII of the Wash­ing­ton Constitution;
  2. Such oth­er relief as may fol­low from entry of a declara­to­ry judgment;
  3. Entry of an injunc­tion pro­hibit­ing place­ment of 1–1366 on the bal­lot for the Novem­ber 2015 gen­er­al election;
  4. Rea­son­able attor­ney’s fees, expens­es and costs to the fullest extent allowed by law and equi­ty; and
  5. Any fur­ther relief this Court deems nec­es­sary and proper.

By August 14th, a King Coun­ty Supe­ri­or Court judge will like­ly hear oral argu­ments in the case, and con­sid­er fur­ther writ­ten briefs from the plain­tiffs and the defen­dants. There may also be ami­cus briefs filed by oth­er inter­est­ed par­ties. This is a high-stakes case and there is like­ly to be a lot of interest.

Who­ev­er los­es will almost cer­tain­ly appeal to the Wash­ing­ton State Supreme Court and ask for an expe­dit­ed review. Bal­lots are due to be mailed to over­seas and mil­i­tary vot­ers in mid-Sep­tem­ber, and the print­ing of bal­lots and com­ple­tion of the voter’s pam­phlet state­ment needs to hap­pen before then.

So there’s not a lot of time for this case to stretch out. The judi­cia­ry will need to move more quick­ly than it ordi­nar­i­ly does in order to hear this case before the vot­ing begins in the 2015 gen­er­al elec­tion. What­ev­er the Wash­ing­ton State Supreme Court decides — assum­ing it hears the case on appeal — will be final.

We can’t assume that the court will block I‑1366. It’s sim­ply won­der­ful that this legal chal­lenge has been filed… and every Wash­ing­ton­ian who cares about uphold­ing our Con­sti­tu­tion and the val­ues this state was found­ed upon should be grate­ful to Paul Lawrence and his col­leagues tonight for bring­ing this action… but we need to be pre­pared for the pos­si­bil­i­ty we won’t win.

That means con­tin­u­ing to orga­nize oppo­si­tion to I‑1366.

We at NPI will def­i­nite­ly con­tin­ue to cov­er this legal chal­lenge and report on all devel­op­ments. At the same time, our efforts to aid in the assem­bly of cam­paign infra­struc­ture to fight I‑1366 will go on as planned. We need to be ready for what­ev­er hap­pens. Should I‑1366 stay on the bal­lot, it is deserv­ing of noth­ing less than a diverse, com­pelling, and well-con­struct­ed oppo­si­tion campaign.

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One Comment

  1. AGREED

    # by Gretchen Anna Sand :: July 31st, 2015 at 2:23 PM

3 Pings

  1. […] I doubt this will keep Tim Eyman’s bull­shit off the bal­lot. Still, at a cer­tain point, this non­sense is just going to have to stop. It’s tough to change […]

    Ping from Open Thread 7-31 | HorsesAss.Org :: July 31st, 2015 at 7:58 AM
  2. […] Read the full Cas­ca­dia Advo­cate arti­cle and analysis> […]

  3. […] of Finan­cial Man­age­ment, was cer­ti­fied for the bal­lot by Sec­re­tary of State Kim Wyman, and then was sub­ject­ed to a legal chal­lenge by King Coun­ty Elec­tions Direc­tor Sher­ril Huff, Thurston Coun­ty Audi­tor Mary Hall, and other […]

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