This is a breaking news post.
In a written decision handed down moments ago, King County Superior Court Judge Dean Lum has found that Tim Eyman’s I‑1366 is indeed beyond the scope of the people’s initiative power… but has nevertheless declined to grant plaintiffs’ motion for a preliminary injunction blocking it from the ballot because, in his view, doing so might violate the defendants’ rights under the First Amendment to the U.S. Constitution and Article II, Section 5 of the Washington State Constitution.
Lum’s decision is neither a victory for the plaintiffs (led by Elections Director Sherril Huff and Auditor Mary Hall), nor the defendants, Secretary of State Kim Wyman, along with initiative sponsor Tim Eyman and his associates.
On the one hand, Judge Lum accepted and validated the plaintiffs’ argument that the initiative is beyond the scope, declaring:
The Court finds that the fundamental, stated and overriding purpose of 1–1366 is to amend the Constitution. Sponsors do not contest that the referenced 1–1366 “promotional material” for the “2/3- For Taxes Constitutional Amendment Initiative” was drafted not by some unnamed supporters, but by themselves.
The “promotional material” are not mere advertisements, but either fundraising letters from some of the defendants, or the actual page attached to the 1–1366 signature gathering document. The initiative’s text explicitly links the proposed constitutional amendment (with specific constitutional amendment language submitted with the initiative) to a reduction in the sales tax from 6.5% to 5.5%.Legislators would have no authority to propose changes to the constitutional amendment. The initiative’s sponsors have decided that already.
I‑1366 appears to violate Article XXIII Constitutional process in at least three ways. First, the initiative proposes the constitutional amendment, rather than coming from the Senate or the House. The constitutional amendment’s text comes directly from the initiative with no possible changes by any legislator. The constitutional amendment process effectively bypasses representatives elected by the people.
Second, 1–1366 directs the legislature to submit the proposed amendment to a public vote without the requirement that it be passed by 2⁄3 of each independent house, thereby amending the constitution and the constitutional process.
Third, the initiative uses the threat of a large reduction in the sales tax (and large reduction in services to Washingtonians) to force legislators to engage in the physical act of “proposing” the constitutional amendment for the ballot, notwithstanding that some will forced to do so against their will and without any changes to the amendment. The purpose of the initiative is not to legislate, but to invoke the constitutional amendment process. Sponsors characterize the legislator’s proposal as a “choice”, but there is no choice here.
On the other hand, the judge agreed with the defendants that there are not sufficient grounds to issue a preliminary injunction blocking I‑1366 from the ballot.
In order to obtain preliminary injunction, plaintiffs must establish (1) a clear legal or equitable right; (2) a well-grounded fear of immediate invasion of that right; and (3) that the act complained of will result in actual and substantial injury… Whether this proposed injunction triggers First Amendment protections is not that clear, as our Supreme Court has neither squarely addressed the issue nor harmonized its reasoning in the Futurewise, Coppernoll, Philladelphia II and Maleng cases. Moreover, previous pre-election cases involving local initiatives are of limited precedential value on this issue, since the state initiative process is part of the state constitution itself.
The judge added:
Here, although the ultimate decision is obviously the Supreme Court’s, there is a substantial possibility that 1–1366 will be found to be invalid for exceeding the scope of the initiative process, and that voters will be voting on a measure which will never go in to effect. Plaintiffs have alluded to additional Constitutional and other substantive challenges to 1–1366 which would make it susceptible to post-election invalidation, including most prominently an alleged violation of the two subject rule. Nevertheless, the Coppernoll, Philadelphia II and Maleng cases require that the preliminary injunction be denied because it is not clear that it would not violate the First Amendment or Article I, Section 5.
Of course, on appeal, the Supreme Court could squarely decide the First Amendment issue prior to the election, but this trial court is not in a position to say that the law on this issue is clear and settled.
And so, therefore:
Although 1–1366 appears to exceed the scope of the initiative power , our Supreme Court has not clearly and squarely ruled on whether the First Amendment to the United States Constitution and/or Article I Section 5 of the Washington State Constitution provide additional protections against pre-election challenges even in circumstances where the initiative may itself be invalid. The Supreme Court may clarify this issue prior to the election, but this trial court cannot.
The Court cannot say at this time whether Plaintiffs’ actual and substantial injuries outweigh Defendants’ First Amendment rights under the United States Constitution or their rights under Article I, Section 5 of the Washington State Constitution.
Based on the foregoing Findings of Fact and Conclusions of Law and Memorandum Opinion, the Court hereby DENIES Plaintiffs’ Motion for Preliminary Injunction.
With this ruling, Judge Lum is squarely putting the ball in the Supreme Court (couldn’t resist a pun). This case was always going to be appealed, and the judge’s memorandum opinion all but guarantees that the Court will have to take the case. There is an important question to be decided here. The trial court has found that I‑1366 is beyond the scope, but wasn’t willing to block it from the ballot. That decision will have to be made by the Supreme Court.
Given that there is something for everyone to like and dislike in this decision, it stands to reason that all the parties involved will welcome an appeal. The Supreme Court will be asked to make a decision prior to September 4th, which the Secretary of State has identified as the drop-dead date for the purposes of ballot preparation.
We’ll have more analysis of this decision in the days to come. It’s quite the mixed bag. The judge’s findings are very welcome, but the verdict wasn’t what we were hoping for. Nevertheless, this case was always headed to the Supreme Court, and the plaintiffs can certainly be happy that Judge Lum validated their arguments.
In the next few weeks, we’ll be bringing you coverage of the oral arguments as well as analysis of the briefs that will be filed as part of the appeal.