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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.

Tuesday, May 2nd, 2017

Kittitas County Superior Court judge turns back constitutional challenge to I‑1433

A Supe­ri­or Court judge in Kit­ti­tas Coun­ty has turned back a con­sti­tu­tion­al chal­lenge to I‑1433 filed by sev­er­al trade asso­ci­a­tions, leav­ing new require­ments for paid leave and increas­es to the state’s min­i­mum wage in place.

“[T]his Court is of the opin­ion that the Plain­tiffs have failed to estab­lish that I‑1433 has vio­lat­ed the Wash­ing­ton State Con­sti­tu­tion in any man­ner. Accord­ing­ly, sum­ma­ry judg­ment will be entered for the State by sep­a­rate order, filed this state,” wrote Judge Scott R. Sparks in a let­ter to coun­sel accom­pa­ny­ing his rul­ing.

Sparks was asked to find I‑1433 uncon­sti­tu­tion­al on mul­ti­ple grounds by three cou­ples and the fol­low­ing alliance of trade asso­ci­a­tions.

  • The (ardent­ly right wing) Nation­al Fed­er­a­tion of Inde­pen­dent Busi­ness
  • The Wash­ing­ton Farm Bureau
  • The Wash­ing­ton Retail Asso­ci­a­tion
  • The North­west Food Proces­sors Asso­ci­a­tion
  • The Wash­ing­ton Food Indus­try Asso­ci­a­tion

Plain­tiffs were rep­re­sent­ed by Phil Tal­madge, a for­mer Supreme Court jus­tice who has since returned to pri­vate prac­tice and helped decide the land­mark ATU case.

(ATU, or Amal­ga­mat­ed Tran­sit Union v. State, was the deci­sion that result­ed in Tim Eyman’s I‑695 being struck down as uncon­sti­tu­tion­al due to hav­ing vio­lat­ed the Wash­ing­ton State Con­sti­tu­tion’s sin­gle sub­ject rule.)

The State of Wash­ing­ton, which defends vot­er-approved ini­tia­tives, was rep­re­sent­ed by Cal­lie Castil­lo and Rebec­ca Glas­gow of Attor­ney Gen­er­al Bob Fer­gu­son’s office.

After hear­ing oral argu­ments on April 21st and con­sid­er­ing the briefs sub­mit­ted by coun­sel, Sparks grant­ed sum­ma­ry judg­ment to the State of Wash­ing­ton, uphold­ing I‑1433 as con­sti­tu­tion­al. The coali­tion that spon­sored I‑1433, Raise Up Wash­ing­ton (which includes NPI — we proud­ly gath­ered sig­na­tures for the ini­tia­tive), inter­vened in the case and was rep­re­sent­ed by Lynn Allen Award recip­i­ent Paul J. Lawrence of Paci­fi­ca Law Group with Gre­go­ry J. Wong and Alan­na E. Peter­son.

Tal­madge argued that I‑1433 could­n’t be con­sti­tu­tion­al because its min­i­mum wage and paid leave pro­vi­sions lacked ratio­nal uni­ty.

“I‑1433’s title is restric­tive in scope,” argued Tal­madge in his ini­tial com­plaint. “It address­es two dis­tinct issues — the min­i­mum wage and ‘sick leave’. As the bal­lot title is restric­tive, 1–1433 fails arti­cle II ‚§ 9’s one-sub­ject man­date as it carves out two dis­tinct sub­ject mat­ters — increas­ing the min­i­mum wage and address­ing ‘sick leave’.”

Judge Sparks dis­agreed.

“I‑1433 deals with a gen­er­al sub­ject, labor stan­dards. The bal­lot title specif­i­cal­ly gave the pub­lic notice that the law dealt with the min­i­mum wage, paid sick leave, and relat­ed laws. Inquir­ing minds were put on notice that the min­i­mum wage and paid sick leave were on the bal­lot. The Plain­tiffs have failed to estab­lish that the sub­ject in title test of Arti­cle II, § 19 was vio­lat­ed beyond a rea­son­able doubt.”

Tal­madge also argued that I‑1433 was invalid because it amend­ed pre­vi­ous­ly enact­ed statutes per­tain­ing to employ­ee leave with­out ref­er­enc­ing them as the Con­sti­tu­tion requires. Sparks reject­ed this argu­ment too.

“Plain­tiffs argue that 1–1433 mod­i­fied the var­i­ous employ­ee leave laws by impli­ca­tion yet nev­er set forth those exist­ing laws at full length,” not­ed the judge.

“How­ev­er, rather than express­ly mod­i­fy­ing var­i­ous employ­ee leave laws, I‑1433 set forth a new cat­e­go­ry of employ­ee leave that hereto­fore had not exist­ed in this State: manda­to­ry paid ‘sick’ leave. While it is true that the def­i­n­i­tion of ‘sick leave’ includ­ed oth­er types of employ­ee leave that pre­vi­ous to I‑1433 were not known as sick leave, those exist­ing leave laws did not require said leave to be com­pen­sat­ed.”

“Accord­ing­ly, I­-1433 was com­plete, inde­pen­dent, and stood alone on the par­tic­u­lar sub­ject of paid sick leave. The Plain­tiffs have not estab­lished beyond a rea­son­able doubt that I‑1433 vio­lat­ed Arti­cle II, § 37 of the Wash­ing­ton Con­sti­tu­tion.”

Sparks’ rul­ing rep­re­sents a com­plete defeat for Tal­madge and his clients. They had filed their case in Kit­ti­tas Coun­ty Supe­ri­or Court in the hopes of secur­ing a favor­able opin­ion at the tri­al court lev­el (a prac­tice col­lo­qui­al­ly known as forum shop­ping) so as to be in a stronger posi­tion when the case reached the Supreme Court on appeal. But they did­n’t win. So if there’s going to be an appeal, they’ll have to file it.

The busi­ness groups fund­ing this law­suit would be bet­ter served by sim­ply pulling the plug on this chal­lenge and urg­ing their employ­er-mem­bers to sim­ply pay their work­ers as the law requires. Appeal­ing to the state Supreme Court real­ly does­n’t make sense, espe­cial­ly when the Court ruled two years ago in Filo Foods that SeaT­ac’s sim­i­lar min­i­mum wage and paid leave ini­tia­tive was con­sti­tu­tion­al.

Appro­pri­ate­ly, Sparks cit­ed and quot­ed from the Filo Foods rul­ing in his let­ter to coun­sel explain­ing his deci­sion to grant the state sum­ma­ry judg­ment.

We’ve seen some grum­bling on social media com­ing from the oth­er side in response to this deci­sion, which is to be expect­ed. Right wing com­men­ta­tors have asked how I‑1433 can be con­sti­tu­tion­al when Tim Eyman’s I‑695 was­n’t, for exam­ple.

The answer to that par­tic­u­lar ques­tion is that I‑1433’s pro­vi­sions are defen­si­bly relat­ed, where­as I‑695’s pro­vi­sions lacked ratio­nal uni­ty.

Eyman’s I‑695 tried to do two very dif­fer­ent things: repeal the statewide motor vehi­cle excise tax, or MVET, and require a pub­lic vote for any future rev­enue increase. Eyman stuffed the sec­ond pro­vi­sion in because he want­ed two ini­tia­tives for the price of one. He was logrolling. Accord­ing­ly, I‑695 was found uncon­sti­tu­tion­al.

I‑1433 does not suf­fer from I‑695’s defect. The mea­sure has a sin­gle sub­ject, labor stan­dards, and a sin­gle pur­pose: bol­ster pay for Wash­ing­ton’s fam­i­lies. This sin­gle pur­pose is accom­plished with two strate­gies, but those strate­gies are relat­ed. Increas­ing the min­i­mum wage and requir­ing employ­ers to pro­vide paid leave for work­ers both result in bet­ter-com­pen­sat­ed work­ers and bet­ter work­ing con­di­tions. The ini­tia­tive there­fore com­plies with Arti­cle II, Sec­tion 19 (the sin­gle sub­ject rule).

Curi­ous­ly, as Judge Sparks observed, Arti­cle II, Sec­tion 19 itself con­tains two pro­vi­sions. It requires, first­ly, that a statute embrace only one sub­ject, and sec­ond­ly, that the statute’s sub­ject shall be expressed in its title. How­ev­er, as the Con­sti­tu­tion is the supreme law of the land, that incon­sis­ten­cy is just an amuse­ment.

I‑1433’s spon­sors took care to ensure that the mea­sure they would even­tu­al­ly pour sub­stan­tial resources into was well-draft­ed before final­iz­ing it, because they want­ed it to stand as thought­ful­ly writ­ten law. And that leg­work paid off.

Unlike Tim Eyman’s ini­tia­tives, there is no mal­ice under­pin­ning I‑1433. The ini­tia­tive does­n’t try to sub­vert our Con­sti­tu­tion or wreck gov­ern­ment. It sim­ply requires a min­i­mum thresh­old of com­pen­sa­tion for Wash­ing­ton’s work­ers.

Tim Eyman could have decid­ed after the ATU case to respect the Con­sti­tu­tion when com­ing up with future schemes. But he chose not to. Eyman great­ly resents the lim­i­ta­tions that the Con­sti­tu­tion places on the ini­tia­tive pow­er, and has rel­ished putting ini­tia­tives in front of the peo­ple that attempt to defy those lim­i­ta­tions. He has set the stage for his own court loss­es many, many times.

For Eyman, ini­tia­tives are not so much a means to an end as a way of life. Eyman must always have an ini­tia­tive to sell, even when he does­n’t have the mon­ey to get on the bal­lot. Con­se­quent­ly, Eyman is solic­it­ing con­tri­bu­tions from his fol­low­ers right now for an ini­tia­tive he knows isn’t going any­where (I‑1550).

For us, ini­tia­tives are a tool for bypass­ing a grid­locked Leg­is­la­ture and rais­ing up every­one. That’s why we hap­pi­ly sup­port­ed the devel­op­ment and qual­i­fi­ca­tion of I‑1433. This ini­tia­tive isn’t just good for Wash­ing­ton’s work­ers — it’s good for Wash­ing­ton’s busi­ness­es, too. When states take steps to make their economies more inclu­sive, that results in a bet­ter busi­ness cli­mate and broad­er pros­per­i­ty.

As the late Sen­a­tor Paul Well­stone said, we all do bet­ter when we all do bet­ter.

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