NO on Tim Eyman's I-1366
NO on Tim Eyman's I-1366: Our Kids Shouldn't be Hostages to Bad Politics

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 23 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.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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