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.