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Tuesday, November 24th, 2015

New legal challenge filed against Tim Eyman’s hostage-taking I-1366 in Superior Court

With Washington’s 2015 general election on the verge of being certified, the time has come to continue the fight against Tim Eyman’s I-1366 in the courts.

Accordingly, attorneys with Pacifica Law Group have filed a new lawsuit seeking a declaratory judgment that I-1366 exceeds the scope of the initiative power and violates multiple provisions of the Washington State Constitution in King County Superior Court, on behalf of the following plaintiffs:

  • Tony Lee and Angela Bartels
  • State Senator David Frockt
  • State Representative Reuven Carlyle
  • Eden Mack
  • Jerry Reilly
  • Paul Bell
  • League of Women Voters of Washington

With the exception of the League of Women Voters, all of the above-named plaintiffs were also plaintiffs in Huff v. Wyman, the preelection scope challenge to I-1366, which was argued in August, decided in early September by the Supreme Court, and retained for a decision on the merits until two weeks ago.

In Huff v. Wyman, plaintiffs sought an injunction to keep I-1366 off the ballot on the grounds that I-1366 exceeded the scope of the initiative power. King County Superior Court Judge Dean Lum ruled I-1366 did in fact exceed the scope of the initiative power, but nevertheless declined to grant an injunction. Judge Lum’s decision was immediately appealed to the state Supreme Court, which likewise declined to grant an injunction, though on different grounds.

I-1366 thus appeared on the ballot and passed narrowly in an election year that saw the worst voter turnout in Washington State history. Only around 19% of the state’s registered voters cast votes in favor of Tim Eyman’s I-1366.

This new case against I-1366 is what’s known as a substantive challenge. Substantive challenges are routinely filed against flawed voter-approved initiatives after the conclusion of an election. I-1366 is as flawed of an initiative as we’ve ever seen, and there are ample grounds on which to bring a case against it.

Not all substantive challenges are successful, but Paul Lawrence, the senior litigation partner at Pacifica Law Group (the firm representing the aforementioned plaintiffs), has a very strong track record. Paul was the lead attorney in both League of Education Voters v. State (decided in 2013) and League of Women Voters v. State (decided a few weeks ago), which were landmark cases against right wing initiatives.

In LEV, the Washington State Supreme Court ruled that the two-thirds vote requirement contained in I-601 and Tim Eyman’s I-601 clones was unconstitutional, thus restoring majority rule to Washington’s statehouse. In LWV, the Court held that charter schools were unconstitutional, striking down I-1240 from 2012.

Both LEV and LWV were substantive challenges brought against initiatives after they had passed. In postelection substantive challenge, any constitutional defect that an initiative happens to suffer can be the basis for a lawsuit, unlike in a preelection challenge, which can only be brought on procedural or scope grounds.

The new case against I-1366 alleges that the initiative is invalid in four ways. The introduction to the complaint summarizes each defect:

[First Defect]:

The fundamental and overriding purpose of I-1366, as evidenced by its text, its title and its advertising, is to invoke the process to amend the Constitution to require a two-thirds legislative supermajority or a public vote for approval of any measure that “raises taxes” and legislative approval for state fee increases. See Exhibit A. It is well-established that the Constitution cannot be amended, revised or altered by initiative or referendum. As such, I-1366 is beyond the scope of the legislative power reserved to the people under Article II and is therefore invalid.

[Second Defect]:

For the same reasons, I-1366 is also unconstitutional because it violates the terms of Article XXIII. Article XXIII sets forth the sole method of amending the state Constitution. The Article XXIII amendment process is “manifestly distinct” from that involved in the enactment of ordinary bills or laws and involves two distinct phases. First, an amendment must be proposed in either house of the legislature and approved by two-thirds of each house. Then, it must be submitted to and approved and ratified by a majority of Washington voters. Amendment of the Washington Constitution is not a “legislative act” exercising the power to pass ordinary bills and laws under Article II of the Constitution.

Though Article XXIII expressly provides that amendments should be proposed by either house of the legislature, here, the people have usurped this power by proposing the amendment via the initiative process. I-1366 expressly dictates the terms of the intended supermajority amendment, including the definition of what it means to “raise taxes” and require legislative approval for state fee increases. Because I-1366 did not follow the process for amendment set forth in Article XXIII, it is unconstitutional and invalid.

[Third Defect]:

I-1366 is also unconstitutional under Article II, Sec. 19 because it contains multiple subjects in both the body of the Initiative and its title, including but not limited to a reduction in the state sales tax and an amendment to the state constitution that contains two subjects of its own: a supermajority requirement for tax increases and a simple majority requirement for fee increases.

[Fourth Defect]:

I-1366 is also unconstitutional because it abridges the power of the 2016 legislature to act. The Initiative requires the legislature to choose between an unsupportable sales tax reduction and the unconstitutional submission of a supermajority amendment that will forever empower a superminority to exercise control over all future taxation decisions. The 2016 legislature is thus not free to exercise its plenary law¬making power or its plenary power to consider and propose constitutional amendments; rather it is forced to choose between two undesirable options. As a result, I-1366 is an unconstitutional limitation on the plenary power of the 2016 legislature.

The complaint requests the following relief:

  1.  That the Court enter a declaratory judgment that I-1366 exceeds the scope of the initiative power, and violates Article II, sec. 1, Article II sec. 19 and Article XXIII of the Washington Constitution and therefore Initiative 1366 is unconstitutional and void;
  2. Such other relief as may follow from entry of a declaratory judgment;
  3. Reasonable attorney’s fees, expenses and costs to the fullest extent allowed by law and equity; and
  4. Any further relief this Court deems necessary and proper.

Now that the initial complaint has been filed, the case is on. Additional briefs will be submitted to the Court during the month of December. A hearing is not likely until early January. At the hearing, the Court will consider oral argument from all sides in the case. If history is any indication, a ruling would follow soon after, possibly coming during the first few weeks of the Legislature’s short 2016 session.

The trial court’s decision will likely be appealed by the losing party, which will put the issue back before the Washington State Supreme Court in short order.

If the trial court grants the relief requested by plaintiffs, I-1366 would become unenforceable during the midst of the 2016 legislative session, and would effectively be iced until the Supreme Court decided its fate on appeal.

That would spare the Legislature from having to worry about filling the giant budget hole that Scenario 1 of I-1366 would create, at least until the Supreme Court of Washington weighs in with a final decision. (Scenario 1 is the provision of the initiative that cuts the sales tax if the Legislature refuses to pass the constitutional amendment demanded by Eyman and his wealthy benefactors.)

Democrats on both sides of the dome are utterly uninterested in capitulating to Tim Eyman, so Scenario 2 of the initiative is implausible. The votes simply do not exist to sabotage Article II, Section 22 with a constitutional amendment.

And they’re not going to materialize as we get closer to April, either.

Democrats are sick and tired of Eyman’s endless demagoguery and are staunchly opposed to taking a hatchet to the majority vote provision of our Constitution that dates all the way back to statehood. Two of them, State Representative Reuven Carlyle and State Senator David Frockt, are among the plaintiffs in this case.

If the courts don’t strike I-1366 down, the Democratic House and the Republican Senate will be left with no choice but to quickly to figure out how to offset the sales tax cut, or else go into the 2016 campaign with an unraveling state budget. The little progress that has been made to date towards McCleary compliance will be completely wiped out in short order if I-1366 is not dealt with.

But again, if the courts do their job, the Legislature won’t have to worry about I-1366. We believe this new challenge to I-1366 has a very solid foundation, and we look forward to seeing it argued in the weeks to come.

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