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.

Monday, March 14th, 2016

Washington State Supreme Court to hear oral argument in Lee v. State tomorrow morning

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.

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