Tomorrow morning, the Washington State Supreme Court is scheduled to hear oral argument in Lee v. State, the post-election legal challenge to Tim Eyman’s I‑1366, which narrowly passed last November amidst record low voter turnout.
I‑1366 was an attempt by Eyman to coerce the Washington State Legislature into overturning a previous Supreme Court decision, League of Education Voters v. State, which held that previous initiatives by Eyman to require a two-thirds vote to pass any revenue bills were unconstitutional. I‑1366 threatened to wipe out $8 billion in funding for schools and other public services unless the Legislature agreed to reverse the League of Education Voters decision by April 15th, 2016.
However, in January, King County Superior Court Judge William Downing struck down I‑1366 in its entirety, agreeing with plaintiffs that the initiative was unconstitutional in multiple respects. Downing’s decision was immediately appealed to the Washington State Supreme Court, which will deliver a final verdict.
For the last several weeks, the Court has been accepting briefs from attorneys representing the plaintiffs, the defendants, and amici. Tomorrow, the makers of those briefs will summarize their arguments before the nine justices of the Court. Each side is allotted twenty minutes to present its case.
Back in January, after our victory in Superior Court, I wrote a post explaining why Eyman can expect the Washington State Supreme Court to affirm Judge Downing’s ruling. Eyman had brashly, confidently predicted victory prior to the morning Downing published his ruling, and was seemingly stunned when it went completely against him. But he needn’t have been. As I wrote in the aforementioned post:
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.
I‑1366 is unconstitutional because it is outside the scope of the initiative process, contains multiple subjects, infringes on the Legislature’s exclusive power to propose constitutional amendments, and also abridges the Legislature’s plenary powers.
I‑1366 is arguably Eyman’s most constitutionally defective initiative yet, which is really saying something, because most of the initiatives Eyman has gotten past the voters in the past have been struck down by the Supreme Court as unconstitutional. While a single fatal defect can result in an initiative’s demise, I‑1366 happens to be chock full of fatal defects. It’s easy pickings for an experienced litigator like Pacifica Law Group’s Paul Lawrence, who ably represents the plaintiffs.
Attorney General Bob Ferguson’s office, meanwhile, has the unpleasant, unenviable task of mounting a defense of I‑1366 as required by law. Given I‑1366’s plethora of defects, they have an extraordinarily weak case, and have had to result to legal acrobatics to reach the conclusion that I‑1366 shouldn’t be struck down.
This is evident from their briefs, which simply aren’t persuasive.
Eyman, not surprisingly, thinks the arguments that Ferguson’s team has come up with are gold, and has gushed over their work product. When the case was at the Superior Court level, Eyman sent out an email to reporters that heavily excerpted one of the briefs submitted by Assistant Solicitor General Callie Castillo.
(At least they have one satisfied customer. I’m guessing Eyman won’t be as charitable to Ferguson’s office when and if they file suit against him for serious violations of Washington’s public disclosure law.)
Judge Downing thoughtfully considered the arguments proffered by the state and by Eyman’s attorney and rejected them… all of them.
Eyman professed himself to be quite impressed with Downing after having watched the oral argument. In a subsequent email to reporters, he declared:
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.
You might think that having been in and out of court so many times over the years, Eyman would have learned something about how the judiciary works. But apparently not. It’s very common for judges and justices to play devil’s advocate with attorneys at oral argument. A good jurist always reads the briefs submitted by counsel ahead of time to understand the case. Oral argument gives jurists an opportunity to challenge each side’s attorneys with probing questions.
Eyman mistook Judge Downing’s line of questioning of Paul Lawrence as a sign that the judge was on his side. But as he soon discovered, Downing wasn’t on his side. He was simply covering all of the bases before handing down a ruling.
Eyman is still convinced that his side’s arguments, which have been repackaged for the Supreme Court’s consideration, are “excellent” and “brilliant”. I rather doubt the nine popularly elected justices of our state’s highest court will agree.
Unless they wish to break with decades of precedent and settled case law, they’ll affirm Judge Downing’s ruling, relegating I‑1366 to the dustbin of history.
Eyman may not be resigned to that outcome, but he seems prepared for it, at least. His latest email to followers acknowledges the possibility that the Supreme Court will strike I‑1366 down. If that’s what happens, Eyman says he’ll “fight back with follow-up initiatives”. Presumably, that means he’ll move ahead with the unconstitutional I‑1366 sequel he’s said he’ll try to qualify to the ballot this year.
Some observers of Washington politics have openly wondered if Eyman deliberately writes defective initiatives, so as to have an excuse to keep shaking his electronic tin cup year after year. Why else does this pattern keep repeating itself?
While it’s certainly true that Eyman profits whether he wins or loses, my view is that Eyman is a con artist who likes to see what he can get away with. His initiatives are strategic power plays, intended to immobilize progressive organizations, fracture the Democratic Party, defund public services, and sow mistrust in government.
Up until Judge Downing struck down I‑1366 in January of this year, Eyman was flying high (or he thought he was, anyway). Wealthy benefactors had stepped up to fund the I‑1366 signature drive, the courts had declined to block I‑1366 from the ballot, and I‑1366 had passed in the November 2015 general election. And all of this happened against the backdrop of Eyman being investigated by the Public Disclosure Commission for serious violations of our public disclosure laws.
But now I‑1366 is crashing and burning. Thanks to Judge Downing, it’s unenforceable for the time being.
If the Supreme Court affirms, we’ll be able to give I‑1366 a final burial.
The Legislature, meanwhile, has refused to give Eyman what he wants. Republicans, who are in Eyman’s corner, tried to push through a constitutional amendment to require a two-thirds vote for revenue bills. But, to Eyman’s consternation, Democrats stayed unified, voting to uphold our Constitution and nixed the amendment, which (ironically and appropriately) needed a two-thirds vote to pass.
Beginning at 9 AM tomorrow, we’ll be offering live coverage of the oral argument in Lee v. State here on the Cascadia Advocate. We invite you to follow along as we share our observations and thoughts on the case.