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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.

Wednesday, January 20th, 2016

Tim Eyman backtracks on brash predictions of victory in Initiative 1366 legal challenge

Some­time tomor­row, King Coun­ty Supe­ri­or Court Judge William Down­ing is expect­ed to issue a rul­ing in the case of Tony Lee, et al. v. State of Wash­ing­ton, et al., the legal chal­lenge to Tim Eyman’s incred­i­bly destruc­tive Ini­tia­tive 1366. Down­ing heard oral argu­ments from lawyers rep­re­sent­ing the plain­tiffs and defen­dants yes­ter­day morn­ing, and promised he’d have a deci­sion by Thurs­day.

Before and after the hear­ing, Eyman was in full-blown spin mode, brash­ly pre­dict­ing total vic­to­ry in a series of emails dat­ing back to last week. For instance, on Wednes­day, Jan­u­ary 13th, Eyman sent out an email in which he said:

On Tues­day of next week is oral argu­ments in oppo­nents’ sore-los­er law­suit against 1366. It’s in King Coun­ty Supe­ri­or Court. Here’s a bold pre­dic­tion: I‑1366 is gonna sur­vive the courts. You heard that right, we’re con­fi­dent the low­er court and supreme court are going to dis­miss our oppo­nents’ law­suit. Why? Our ini­tia­tive and our legal defense of it (and the Attor­ney Gen­er­al’s) has been stel­lar while our oppo­nents’ legal argu­ments are sil­ly and non­sen­si­cal. We’re as skep­ti­cal of judges as the next guy, but know­ing every­thing there is to know about this case, we firm­ly believe it’s gonna go our way on this one. We’ll keep you an updat­ed report after Tues­day’s hear­ing.

Yes­ter­day, Eyman sent out an email to the press dou­bling down on his pre­dic­tion:

I am explod­ing with opti­mism. I walked into court con­fi­dent that 1366 would sur­vive. But I was ful­ly pre­pared to feel dif­fer­ent­ly depend­ing on the hear­ing. But now that it’s over, I feel even more con­fi­dent that the courts will dis­miss oppo­nents’ sore los­er law­suit against I‑1366.

He did­n’t stop there.

Some judges are pok­er play­ers who keep their cards close to their vest; Judge William Down­ing did­n’t go with that approach today.  He sig­naled ear­ly and often that he was­n’t buy­ing what 1366’s oppo­nents were sell­ing. Plain­tiffs’ attor­ney repeat­ed­ly strug­gled to main­tain his twist­ed, Alice-in-Won­der­land char­ac­ter­i­za­tion of I‑1366 when ques­tioned by the judge.

And when it was our turn, Cal­lie Castil­lo with the attor­ney gen­er­al’s office, con­sis­tent with her bril­liant legal brief, pre­sent­ed oral argu­ments that were pow­er­ful and per­sua­sive that dec­i­mat­ed every argu­ment made by oppo­nents. Our attor­ney’s oral argu­ments were equal­ly com­pelling and he anni­hi­lat­ed the oth­er side’s points.

Issues of stand­ing, judi­cia­bil­i­ty, sev­er­abil­i­ty, and oth­er issues were thor­ough­ly addressed in the briefs and dur­ing oral argu­ment.  The judge was engaged through­out.

I was also in the court­room for yes­ter­day’s hear­ing, and I dis­agree that Judge Down­ing tipped his hand as to how he would rule. The judge asked sev­er­al thought­ful, mea­sured ques­tions of each attor­ney who pre­sent­ed. Most­ly, he lis­tened intent­ly, as you can see from this pho­to­graph that we pub­lished on In Brief:

Judge William Downing

Judge William Down­ing lis­tens to oral argu­ments in Lee v. State (Pho­to: Andrew Villeneuve/NPI)

Our belief is that this case will come down to the briefs… because that’s what usu­al­ly hap­pens. In fact, judges have been known to say that over nine­ty per­cent of cas­es are decid­ed on the briefs. Oral argu­ments pro­vide an oppor­tu­ni­ty for jurists to inter­act with attor­neys, but they’re rarely deci­sive to the out­come of a case.

Thought­ful judges like William Down­ing will fre­quent­ly uti­lize oral argu­ments to play dev­il’s advo­cate, chal­leng­ing the attor­neys who are appear­ing before them to see how they respond. Our judi­cial sys­tem is adver­sar­i­al in nature, so this tried-and-true approach of elic­it­ing infor­ma­tion makes a lot of sense.

I walked out of the court­room yes­ter­day feel­ing real­ly good about our legal chal­lenge. Unlike Eyman, I’m not some­one who likes to make brash pre­dic­tions. I feel we have a strong case. But I don’t pre­tend to have a crys­tal ball. We’ll see what hap­pens. If the rul­ing goes in our favor, I imag­ine Eyman will waste no time call­ing it a “goofy” deci­sion and pro­ceed­ing to pre­dict vic­to­ry at the appel­late lev­el.

Judge Down­ing, inci­den­tal­ly, has his­tor­i­cal­ly been one of the most high­ly-rat­ed jurists on the Supe­ri­or Court bench, which I find encour­ag­ing.

Down­ing is the judge who ruled that mar­riage equal­i­ty should be the law of the land in Wash­ing­ton State in the sum­mer of 2004, when Karl Rove was still run­ning George W. Bush’s polit­i­cal oper­a­tion, work­ing with fun­da­men­tal­ist con­ser­v­a­tives around the coun­try (theo­cons) to force votes on schemes intend­ed to cod­i­fy dis­crim­i­na­tion against LGBT cou­ples into state con­sti­tu­tions.

I should also men­tion that Paci­fi­ca Law Group’s Paul Lawrence, who heads the team rep­re­sent­ing the plain­tiffs, is a very expe­ri­enced lit­i­ga­tor. He’s suc­cess­ful­ly chal­lenged many ini­tia­tives in court before, includ­ing some of Tim Eyman’s. He is the lawyer who suc­cess­ful­ly argued League of Edu­ca­tion Vot­ers (decid­ed 2013) and League of Women Vot­ers (decid­ed last year). Con­sid­er­ing his track record and the strength of the case, Eyman ought to be ner­vous, not brim­ming with brava­do.

It should be not­ed that Eyman’s track record in the courts is sim­ply awful. The list of Eyman ini­tia­tives par­tial­ly or whol­ly inval­i­dat­ed by the courts includes I‑695, I‑722, I‑747, I‑776, I‑960, I‑1053, and I‑1185. That list encom­pass­es most of the Eyman ini­tia­tives that vot­ers have passed since he got into pol­i­tics.

Eyman, of course, has nev­er cared about writ­ing sound law, which is why so many of his schemes have been struck down by Wash­ing­ton’s courts.

Today, Eyman sent out anoth­er email in which he back­tracked a bit from his brash pre­dic­tion, admit­ting he can’t see into the future and does­n’t know what’ll hap­pen.

What’s my pre­dic­tion? These things are always a Rorschach Test — you see what you wan­na see. After the hear­ing, oppo­nents said they thought this King Coun­ty judge will strike down 1366.

I said: “I came in real­ly con­fi­dent based on all the legal briefs and I’m walk­ing out even more con­fi­dent now. I think the judge ‘gets it’ as far as what the ini­tia­tive’s all about. I think he gets the fact that you can eas­i­ly inter­pret this ini­tia­tive as a total­ly valid exer­cise of the peo­ple’s rights.”

Truth is nobody knows. And whichev­er side los­es will imme­di­ate­ly file an expe­dit­ed appeal to the state supreme court.

We think the argu­ments that Eyman and the state are mak­ing in defense of I‑1366 are ridicu­lous and disin­gen­u­ous. For us, they don’t pass the laugh test. I‑1366 is uncon­sti­tu­tion­al in mul­ti­ple ways, as plain­tiffs’ brief explains:

[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 truth is, Tim Eyman’s I‑1366 was con­ceived as a hostage-tak­ing ini­tia­tive. The threat of $8 bil­lion in lost rev­enue over the next six years is the lever­age Eyman is using to attempt to coerce the Leg­is­la­ture into invok­ing its pow­er to pro­pose a con­sti­tu­tion­al amend­ment to say that any bill to raise or recov­er rev­enue needs a two-thirds vote to pass. (Effec­tive­ly, this would give a small sub­ma­jor­i­ty per­ma­nent veto pow­er over any future tax reform pro­pos­al in the Leg­is­la­ture.)

Dur­ing the cam­paign, Eyman described I‑1366 as a revote on the idea of requir­ing a two-thirds vote to raise rev­enue, in vio­la­tion of Arti­cle II, Sec­tion 22. That, of course, was a lie — the Supreme Court had already ruled that his I‑601 clones, like I‑601 before it, were uncon­sti­tu­tion­al. But now that I‑1366 is in legal jeop­ardy, Eyman’s attor­ney is argu­ing that I‑1366 was just a sales tax reduc­tion ini­tia­tive.

How con­ve­nient.

At the same time Eyman’s attor­ney is try­ing to paint I‑1366 a valid exer­cise of the ini­tia­tive pow­er, Eyman has been send­ing off more emails fur­ther threat­en­ing state law­mak­ers — and Democ­rats in par­tic­u­lar. Here’s Eyman again yes­ter­day:

If the 2016 leg­is­la­ture refus­es to refer a con­sti­tu­tion­al amend­ment to the 2016 bal­lot, we’ve already raised $1.2 mil­lion for a 7th tax-lim­it­ing ini­tia­tive. It’s called “Tougher to Raise Tax­es” and it puts a one year time lim­it on tax increas­es and requires leg­isla­tive approval for fee increas­es. In oth­er words, it pro­hibits auto-pilot, for­ev­er tax increas­es and pro­hibits state agen­cies from uni­lat­er­al­ly impos­ing high­er fees.  Polling shows it’ll pass eas­i­ly and it’ll make tax and fee increas­es tougher any­way. And the peti­tion we’ll be using high­lights the Demo­c­rat [sic] leg­is­la­tors from dis­tricts that over­whelm­ing­ly sup­port [Eyman’s past I‑601 clones]. But if the 2016 Leg­is­la­ture refers the con­sti­tu­tion­al amend­ment to the 2016 bal­lot, we won’t do the ini­tia­tive (and won’t col­lect sig­na­tures using our peti­tion).

Empha­sis is mine.

Appar­ent­ly, Eyman fig­ured he would just dou­ble down on his extor­tion tac­tics, since his efforts to date to intim­i­date Demo­c­ra­t­ic law­mak­ers into capit­u­lat­ing to his demands have been a fail­ure. Elect­ed Democ­rats tell NPI they’re unim­pressed with Eyman’s blus­ter­ing. They see him for the mil­i­tant extrem­ist he is, and they have no inten­tion of giv­ing him or his wealthy bene­fac­tors what they want.

The team at NPI, mean­while, is already lay­ing the ground­work to fight Eyman at the bal­lot again. Last year’s cam­paign against I‑1366 was a big improve­ment on the cam­paigns that opposed the last two ini­tia­tives Eyman got past the vot­ers, but it was­n’t good enough. We need to do bet­ter this year. We’re ful­ly com­mit­ted to ensur­ing Eyman’s newest bad idea gets the vig­or­ous oppo­si­tion it deserves in the months to come, while also help­ing pro­gres­sive groups like WAmend go on offense.

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One Comment

  1. Typ­i­cal Tim. He’s done this before.

    # by Traci Rodman :: February 1st, 2016 at 4:29 PM

2 Pings

  1. […] Eyman's I‑1366 anti-tax mea­sure ruled uncon­sti­tu­tion­al – KING5.comTim Eyman back­tracks on brash pre­dic­tions of vic­to­ry in Ini­tia­tive 1366 legal … – Northw…Judge will rule Thurs­day on Tim Eyman anti-tax mea­sure – Q13 FOX­Judge to weigh legal­i­ty of […]

  2. […] “an over­whelm­ing win for Eyman’s oppo­nents, who pre­vailed on their major argu­ments”. Eyman, who had repeat­ed­ly and brash­ly pre­dict­ed vic­to­ry in a series of emails lead­ing up the pub­li­ca…, was […]