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.

Friday, January 22nd, 2016

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.

Eyman in disblief over I-1366 court decision

Tim Eyman can’t believe the verdict in Lee v. State (Courtesy of KING5)

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.

Adjacent posts


  1. Of course, that falls right into his hands. He can spin it as the Man has come down on the will of the people.

    # by Mike Barer :: January 22nd, 2016 at 10:36 PM
  2. The Supreme Court has to uphold Judge Downing’s ruling, or we’re in a world of hurt and the Constitution doesn’t mean what it says…

    # by Jared Frazier :: February 9th, 2016 at 8:32 AM

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  1. […] Eyman is losing in court and under investigation by Attorney General Bob Ferguson for substantive violations of Washington […]