Tim Eyman can expect state Supreme Court to uphold ruling striking down Initiative 1366

Yes­ter­day, to the sur­prise of almost nobody except for Tim Eyman, King Coun­ty Supe­ri­or Court Judge William Down­ing struck down Ini­tia­tive 1366, the uncon­sti­tu­tion­al atroc­i­ty that Eyman qual­i­fied for the bal­lot last year with the back­ing of hedge fund man­agers and real estate developers.

I‑1366 was an attempt by Eyman to coerce Demo­c­ra­t­ic leg­is­la­tors into vot­ing against their val­ues and pass­ing an amend­ment rein­stat­ing a scheme to require a two-thirds vote to raise or recov­er any rev­enue, which would allow a sub­ma­jor­i­ty of as few as sev­en­teen sen­a­tors (12% of the Leg­is­la­ture over­all) to block any attempt to reform our tax code, no mat­ter how sim­ple or technical.

What became I‑1366 was con­ceived in late 2013, at a time when we were fight­ing Eyman’s self-serv­ing I‑517 on the bal­lot. (We won, and I‑517 was over­whelm­ing­ly defeat­ed by vot­ers). Eyman tried to qual­i­fy it in 2014 as I‑1325, but he failed due to lack of sup­port from wealthy bene­fac­tors. Last year, he tried again, hav­ing secured com­mit­ments from some extreme­ly rich peo­ple to under­write his sig­na­ture dri­ve. He bought his way onto the bal­lot with I‑1366, which passed nar­row­ly with the sup­port of just 19% of Wash­ing­ton’s four mil­lion reg­is­tered voters.

Allies of NPI chal­lenged I‑1366 in court as soon as the 2015 gen­er­al elec­tion was cer­ti­fied. Yes­ter­day, Judge William Down­ing hand­ed down his ver­dict. The Asso­ci­at­ed Press call it “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 pub­li­ca­tion of the rul­ing, was stunned.

A KING5 cam­era crew was present in the state capi­tol’s John A. Cher­berg Build­ing with Eyman when he got the news, and they sen­si­bly point­ed their cam­era at Eyman to cap­ture his reac­tion as he digest­ed the rul­ing, which was priceless.

Had Eyman not delud­ed him­self into think­ing that I‑1366 would pass con­sti­tu­tion­al muster — aid­ed by his attor­ney of choice, Richard M. Stephens of Klinge & Stephens LLP — he would have known what to expect.

(At Eyman’s request, Stephens ana­lyzed the text of I‑1366 and assured him in a July 2015 let­ter, “If Ini­tia­tive 1366 is approved by the vot­ers, we firm­ly believe a chal­lenge to the ini­tia­tive’s legal­i­ty has no sup­port in exist­ing law.”)

We have been say­ing for two years straight that what became I‑1366 was uncon­sti­tu­tion­al. We drew that con­clu­sion from a plain read­ing of the ini­tia­tive’s text and the Wash­ing­ton State Con­sti­tu­tion. Our con­clu­sion was rein­forced by talk­ing with experts who teach or have famil­iar­i­ty with con­sti­tu­tion­al law.

Here’s what I said the day that Eyman unveiled I‑1325, the pre­de­ces­sor to I‑1366:

“Tim Eyman’s lat­est ini­tia­tive is uncon­sti­tu­tion­al, just as his I‑601 clones were,” said NPI founder and exec­u­tive direc­tor Andrew Vil­leneuve, who has orga­nized oppo­si­tion to Eyman’s destruc­tive ini­tia­tives for near­ly twelve years.

“And that’s no acci­dent. Eyman is just as inter­est­ed in under­min­ing and weak­en­ing our plan of gov­ern­ment as he is in evis­cer­at­ing the vital pub­lic ser­vices we all rely on. He’s a menace.”

It is impor­tant to under­stand Wash­ing­ton’s Con­sti­tu­tion can­not be amend­ed by ini­tia­tive. Arti­cle XXIII makes very clear all amend­ments must orig­i­nate in the Leg­is­la­ture. Nor can ini­tia­tives be used to restrict the law­mak­ing pow­er of future Leg­is­la­tures. I‑1366 tried to do both of these things. That’s even how Eyman adver­tised the mea­sure, by the way… his mate­ri­als false­ly referred to I‑1325 and I‑1366 as the “2/3rds Con­sti­tu­tion­al Amend­ment Initiative”.

But there’s no such thing as a con­sti­tu­tion­al amend­ment ini­tia­tive. Ini­tia­tives are pro­posed statutes. Con­sti­tu­tion­al amend­ments are pro­posed changes to our plan of gov­ern­ment. Amend­ments have to start in the Leg­is­la­ture, peri­od, and receive a two-thirds vote to pass. Ini­tia­tives, like bills, pass by major­i­ty vote… although the thresh­old for bills in the Leg­is­la­ture is an absolute major­i­ty, per the Con­sti­tu­tion, where­as for ini­tia­tives, it is only a major­i­ty of those turn­ing out in the election.

In addi­tion, I‑1366 ran afoul of the Con­sti­tu­tion’s sin­gle sub­ject rule, a defect that has result­ed in the over­turn­ing of oth­er Eyman ini­tia­tives, like I‑695 and I‑722.

Paci­fi­ca Law Group thus had a rel­a­tive­ly straight­for­ward case root­ed in ample prece­dent to make on behalf of the plain­tiffs in Lee v. State.

It was Attor­ney Gen­er­al Bob Fer­gu­son’s office and Eyman’s attor­ney who had to rely on dubi­ous, unsup­port­able argu­ments in order to mount a defense of I‑1366.

Their efforts cer­tain­ly met with Eyman’s approval. In a Jan­u­ary 11th email tout­ing the brief filed by Assis­tant Attor­ney Gen­er­al Cal­lie Castil­lo (assigned the thank­less job of defend­ing I‑1366), Eyman boast­ed, “The AG’s office made mince­meat out of 1366 oppo­nents. They method­i­cal­ly and metic­u­lous­ly defend­ed I‑1366 and com­plete­ly dec­i­mat­ed every sin­gle one of oppo­nents’ arguments.”

Eyman was so hap­py with the brief that he excerpt­ed over two thou­sand words of it. He may have been delight­ed with it, but we weren’t impressed at all.

In the end, it was Judge Down­ing who served up the mince­meat, ruling:

It is sole­ly the province of the leg­isla­tive branch of our rep­re­sen­ta­tive gov­ern­ment to “pro­pose” an amend­ment to the state con­sti­tu­tion. The intend­ed process — one that is con­sti­tu­tion­al­ly man­dat­ed — is one that facil­i­tates a calm delib­er­a­tion and inde­pen­dent weigh­ing of alter­na­tives before a pro­posed amend­ment is sub­mit­ted for pub­lic review. That process is derailed by the pres­sure-wield­ing mech­a­nism in this ini­tia­tive which exceeds the scope of the ini­tia­tive power.

Pri­or to receiv­ing Judge Down­ing’s rul­ing, Eyman had expressed con­fi­dence that Down­ing would decide in his favor. Remark­ably, Eyman even sent out an email to the press fol­low­ing oral argu­ments claim­ing that he had Down­ing fig­ured out:

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

The next day, Eyman back­tracked a bit, but still expressed con­fi­dence he’d win, only to be shocked the next day when the deci­sion went against him in every pos­si­ble way. It was­n’t long, though, before Eyman began dis­miss­ing Down­ing’s deci­sion and pre­dict­ing vic­to­ry on appeal (as we antic­i­pat­ed he would).

In an inter­view with KING5, Eyman said:

I was real­ly shocked by it… I real­ly was. And I was prob­a­bly the only one who was sur­prised. Every­body else had this con­ven­tion­al wis­dom, ‘Well, it’s a King Coun­ty judge. Of course he’s going to strike the thing down.’ Every­one thought that.

Wrong again, Tim. Our basis for believ­ing that I‑1366 would be struck down had noth­ing to do with the venue were the case was filed. Rather, it was our firm belief that I‑1366 was uncon­sti­tu­tion­al every way from Sun­day. I‑1366 had so many prob­lems that it would have been great­ly trou­bling had any Supe­ri­or Court judge any­where in the state dis­missed the legal chal­lenge filed against it.

Eyman also told KING5:

I read the legal briefs and I sat through the oral argu­ments. I mean, I real­ly thought there was no way you could come to any oth­er con­clu­sion. But this judge just said, you know, I’m going to go in my direc­tion. That might play in King Coun­ty but it does­n’t play statewide and the vot­ers of this state said ‘This is what we want’ and I don’t think that there’s any doubt that this is what the vot­ers under­stood when they vot­ed for the initiative.

It’s irrel­e­vant how this deci­sion plays in King Coun­ty, or any­where else. As a Supe­ri­or Court judge, William Down­ing has a duty to uphold the Con­sti­tu­tion of the State of Wash­ing­ton. His rul­ing is based on the law, not on polit­i­cal considerations.

I’ll also point out again that I‑1366 passed last Novem­ber with the sup­port of just 19% of reg­is­tered vot­ers. Most Wash­ing­to­ni­ans did­n’t return a bal­lot at all, and so did not weigh in on I‑1366. Of those who did par­tic­i­pate, near­ly half vot­ed no. Eyman can’t claim that pas­sage of I‑1366 is what most vot­ers want­ed, because 80%+ of the state’s reg­is­tered vot­ers did not sup­port I‑1366.

In an email to his fol­low­ers today, Eyman took anoth­er shot at Judge Downing.

Rea­son to be opti­mistic:  This same judge struck down a King Coun­ty ini­tia­tive that reduced the size of the King Coun­ty Coun­cil because he said the peo­ple did­n’t have the pow­er to change the King Coun­ty Con­sti­tu­tion (their char­ter). The state supreme court unan­i­mous­ly over­turned his nar­row view of the peo­ple’s rights and upheld the initiative.

Here, Eyman is refer­ring to a 2003 rul­ing by Judge Down­ing on a pre­elec­tion scope chal­lenge to Ini­tia­tive 18, the King Coun­ty Cor­rec­tions Guild’s scheme to shrink the King Coun­ty Coun­cil from thir­teen to nine mem­bers. Down­ing found that I‑18 exceed­ed the scope of King Coun­ty’s ini­tia­tive pow­er and set it aside. His deci­sion was over­turned on appeal by the Wash­ing­ton State Supreme Court, which placed I‑18 on the bal­lot for vot­ers’ con­sid­er­a­tion (it lat­er passed).

This case bears few sim­i­lar­i­ties to that one.

Lee v. State is a sub­stan­tive, post-elec­tion legal chal­lenge to a bla­tant­ly uncon­sti­tu­tion­al statewide ini­tia­tive. Unless the Supreme Court wish­es to break with prece­dent and upend a moun­tain of case law (which we doubt), it is going to find I‑1366 uncon­sti­tu­tion­al. Tim Eyman can expect anoth­er judg­ment going against him by our state’s high­est court a few months from now. But hey, if he wants to delude him­self into think­ing he’s going to win on appeal, he can go right ahead.