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:
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:
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.
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.
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.
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.
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.