NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate provides the Northwest Progressive Institute's uplifting 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.

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  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 […]

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