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.

ORDER
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.