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.

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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