This morning, King County Superior Court Judge Marshall Ferguson is hearing oral arguments for and against a request for a preliminary injunction to block Tim Eyman’s incredibly destructive Initiative 976 from taking effect on December 5th. It’s the first phase of the legal challenge against I‑976 filed by the Garfield County Transportation Authority, the City of Seattle, King County, and a supporting coalition of local governments plus the Amalgamated Transit Union.
Defending I‑976 is the Washington State Attorney General’s office, currently headed by Bob Ferguson. The office is required by law to defend statewide initiatives that are passed by the voters, so Ferguson is obliged to take the position that the measure is constitutional and to convince the courts of that position.
Eyman demanded that Ferguson turn over the defense of I‑976 to a private law firm after the suit was filed. Ferguson, a stickler for following the law, refused. Ferguson has been a top target of Eyman’s trash talk for years, owing to his work to hold Eyman accountable for repeatedly violating our public disclosure laws.
It is apparent from the brief the AGO filed late last week that the professionals who work in Ferguson’s office are doing their best to try to save I‑976 by making the best arguments they can muster. But that may not be enough, just as Keep Washington Rolling’s war chest wasn’t enough to overcome I‑976’s bad ballot title.
The plaintiffs assert I‑976 has multiple constitutional defects, and we agree.
If the State were to concede that, then there would be nothing to argue over — the plaintiffs would win by default — so the State has taken the position that the initiative is constitutional. The State has also argued that a preliminary injunction barring I‑976’s implementation would be unwarranted.
Echoing comments made by sponsor Tim Eyman on November 7th, the State’s brief argues that I‑976 is essentially a clone of Eyman’s 2002 initiative, I‑776, which was partially upheld by the State Supreme Court in Pierce County v. State, and therefore the legal challenge to I‑976 should be rejected.
The brief states:
As an initial matter, Plaintiffs cannot show that I‑976 is unconstitutional beyond a reasonable doubt because our Supreme Court already rejected nearly all of their arguments as to a very similar measure. Initiative 776, enacted by the voters in 2002, adopted many of the same policies embodied in I‑976: limiting state vehicle license fees to $30 and repealing authority for local governments to impose certain vehicle fees and taxes.
This is the first of a number of arguments in the brief that do not hold water.
Using Draftable, our team at NPI published the text of Initiatives 776 and 976 side by side so that anyone who wants to can compare the measures for themselves. While both measures were definitely marketed by the same individual using the same bumper sticker slogan, they are very different in terms of policy specifics.
For example, with respect to scope, I‑776 targeted for repeal Sound Transit’s motor vehicle excise tax and local MVETs in four counties: King, Snohomish, Douglas, and Pierce. I‑976 targets a much broader slew of taxes and fees.
In addition to Sound Transit’s MVET, I‑976 seeks to repeal:
- state-level motor vehicle weight fees
- the state-level motor home (RV) vehicle weight fee
- the state-level supplemental sales tax on retail car sales
- city-level transportation benefit district fees on vehicles
- passenger ferry district fees on vehicles (note that none currently exist)
And with respect to Sound Transit’s MVET, I‑976 is worded quite differently from I‑776. The Supreme Court held that I‑776 was constitutional on Article II, Section 19 (single subject) grounds because I‑776’s language pertaining to Sound Transit’s bond obligations was merely “precatory” (lacking legal effect).
The provisions in I‑976 that concern Sound Transit’s bonds are not precatory and are not housed in the initiative’s intent section as I‑776’s are. Consequently, I‑976 cannot be upheld on the basis that I‑776 was sixteen years ago.
The brief also argues that in adopting I‑976, voters (well, some voters: the majority didn’t vote at all) made a policy choice that should be honored.
More broadly, the whole premise of Plaintiffs’ harm argument is that I‑976 should be enjoined to prevent them from losing money, but enjoining I‑976 will simply mean that others — Washington taxpayers — lose that same amount of money, money they will save if I‑976 is allowed to take effect. Given that Washington voters approved I‑976 and the policy consequence of reducing taxes and fees flowing from taxpayers to public agencies, this consequence cannot be seen as a “harm,” but rather precisely what the people voted to adopt. The equities thus tip strongly against granting injunctive relief.
The above seems more like a political argument than a legal argument. It resembles statements that Dori Monson has made on his show in support of I‑976.
The notion that taxpayers will save money if I‑976 is implemented is wrong. Washington taxpayers will save nothing from I‑976; the measure is a recipe for more traffic, more pollution, and more inequity in our tax code, not to mention higher vehicle maintenance costs from driving on roads that aren’t being properly cared for. These consequences went entirely unmentioned in the ballot title that the AGO created for the initiative, which Tim Eyman picked as the title he wanted voters to see after he went ballot title shopping in the spring of 2018.
As the plaintiffs have argued, there will be harms — significant harms — if I‑976 is implemented and it is entirely reasonable for the courts to put I‑976 on hold until its constitutionality (or lack thereof) is determined.
Later on, the brief tries to make excuses for the language of the I‑976 ballot title, which is one-sided, dishonest, and unrepresentative of I‑976’s provisions.
Plaintiffs claim that the title misled voters into thinking that any “voter-approved charges in excess of $30 would be retained, or that at least voters would retain the authority to approve such vehicle charges.” […] But that is not what the title said.
The title first clearly informs voters that the measure would broadly “repeal, reduce, or remove authority to impose certain vehicle taxes and fees,” without mentioning or exempting voter-approved charges. In a separate clause, the title then explains that one specific type of vehicle fee, “annual motor-vehicle-license fees,” would be limited “to $30, except voter-approved charges.”
The title thus did not say that all existing vehicle taxes and fees above $30 would continue if voter approved, nor that voters in the future could broadly increase vehicle taxes or fees beyond $30; both the limit and the voter-approval option are specific to the fee mentioned in that clause, “motor-vehicle-license fees.”
Although space limitations did not permit the ballot title to detail how a “motor-vehicle-license fee” is defined, or how and when this exception for “voter-approved charges” might arise, it was sufficient to give notice that would lead to an inquiry into the text of the initiative.
Wrong! There is nothing clear about the I‑976 ballot title. It does inform voters what the measure actually does. It’s a bad ballot title… a very bad title.
I emphatically disagree that the title’s wording was “sufficient to give notice that would lead to an inquiry into the text of the measure.”
If I was asked to include this language in one of our research polls to ascertain voter opinions about vehicle fees, I would reject it without a second thought. It’s truly appalling that this was the only language that voters saw on their ballots.
For reference, here is the title in its entirety:
Initiative Measure No. 976 concerns motor vehicle taxes and fees.
This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees; limit annual motor-vehicle-license fees to $30, except voter-approved charges; and base vehicle taxes on Kelley Blue Book value.
Should this measure be enacted into law? Yes [ ] No [ ]
Let’s break it apart, shall we?
The first part of the title says that I‑976 concerns “motor vehicle taxes and fees”. Actually, it concerns a lot more than that. It concerns multimodal transportation infrastructure funding. It concerns the integrity of the state’s transportation budget. It concerns what ought to happen to tax revenue that has been pledged to repay bonds, which are constitutionally protected from being impaired.
It would have been more accurate to say that I‑976 concerns transportation funding because all of the taxes and fees targeted by the initiative support transportation-related accounts at the state, regional, and local levels.
The second part of the title is the concise description. This begins with the phrase “This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees.” Which taxes and fees are affected? The title doesn’t say. Instead, it uses the word “certain”, which is entirely unhelpful. It’s as clear as mud.
Next is the bit “limit annual motor-vehicle-license fees to $30, except voter-approved charges.” This bit is entirely dishonest, as I‑976 does not limit annual motor vehicle license fees to $30 for anyone and even Tim Eyman admits this. Nor does it exempt voter-approved charges from the supposed thirty dollar limitation.
The State concedes in its brief that “space limitations” did not allow “motor vehicle license fees” to be defined, but argues, as noted above, that “it was sufficient to give notice that would lead to an inquiry into the text of the initiative.”
How so?
The phrases “motor vehicle taxes and fees” (from the statement of subject) and “motor-vehicle-license-fees” (from the concise description) are almost identical.
The only difference is the word the presence of the word “license” in phrase number two. The State’s position is essentially that the inclusion of this one different word is sufficient to enable voters to understand that the phrase refers to only “one specific type” of vehicle fee, as opposed to a whole range of vehicle fees.
Sorry, but nope. This argument fails.
In jurisdictions like Seattle, voter-approved fees that support transportation benefit districts are paid annually to renew a vehicle’s registration.
The phrase “limit annual motor-vehicle-license fees to $30, except voter-approved charges” does not differentiate between jurisdictions and it doesn’t even differentiate between different types of state fees.
There is actually more than one type of vehicle fee with “license” in the name at the state level. There’s the “license/registration” fee, the “license service” fee, and then there also are “license plate” fees. Confusing? You betcha!
How on earth are voters supposed to know what this ballot title is referring to?
Even the Department of Licensing avoids using the problematic language “motor vehicle license fee” to the extent it can because it’s a recipe for confusion: it could be conflated with fees paid to obtain or renew a driver’s license.
The DOL “Vehicles” section and “Vehicles” specific navigation menu instead uses the phrases “tabs,” “car tabs,” “register your vehicle,” etc.:
How to renew your tabs
Register your vehicle
Change your name or address
Buying a vehicle
Selling a vehicle
Lost tabs, plates, or titles
License plates
Titles
Fees, taxes, and donations
“License” appears only in one DOL menu item, “license plates”.
Plates are physical objects that go on cars as opposed to fees paid to the Department, so that menu item is not as problematic. But imagine if the first link said “How to renew your license”. Most people would likely think that meant their driver’s license, as opposed to their vehicle’s registration. Adding the words “motor vehicle” might lessen the confusion a bit. But it would still be confusing.
In a previous post here on the Cascadia Advocate, I discussed how the ballot title could have been better, and came up with the following as a first draft of a more defensible ballot title that could stand up to scrutiny:
Initiative Measure No. 976 concerns transportation funding.
This measure would eliminate motor vehicle fees supporting state and local transportation improvements. Vehicle fees would be limited to $30, costing an estimated $4.2 billion in funding for projects and services through 2025.
Should this measure be enacted into law? Yes [ ] No [ ]
Even the above is still problematic because I‑976 doesn’t actually limit vehicle fees to thirty dollars. So here’s a second, more polished draft:
Initiative Measure No. 976 concerns transportation funding.
This measure would lower or abolish several different taxes and fees on motor vehicles supporting state or local transportation improvements, eliminating an estimated $4.2 billion in funding for projects and services through 2025.
Should this measure be enacted into law? Yes [ ] No [ ]
This version gets rid of the problematic, deceptive reference to a fake thirty dollar limitation and instead informs voters that the measure will lower a bevy of taxes and fees on motor vehicles, but at a significant cost.
The thirty word limitation on the length of the concise description (which only applies to statewide measures, not local ones) is hugely problematic because it forces ballot title writers in the Attorney General’s Office to leave out important details. The length needs to be altered to permit more descriptive ballot titles.
Judge Marshall Ferguson has indicated that after hearing oral argument, he will take a little time to further review the briefs and issue a written ruling either this afternoon or sometime tomorrow. We’ll keep you posted.
Tuesday, November 26th, 2019
Attorney General’s arguments in defense of Tim Eyman’s I‑976 don’t hold water
This morning, King County Superior Court Judge Marshall Ferguson is hearing oral arguments for and against a request for a preliminary injunction to block Tim Eyman’s incredibly destructive Initiative 976 from taking effect on December 5th. It’s the first phase of the legal challenge against I‑976 filed by the Garfield County Transportation Authority, the City of Seattle, King County, and a supporting coalition of local governments plus the Amalgamated Transit Union.
Defending I‑976 is the Washington State Attorney General’s office, currently headed by Bob Ferguson. The office is required by law to defend statewide initiatives that are passed by the voters, so Ferguson is obliged to take the position that the measure is constitutional and to convince the courts of that position.
Eyman demanded that Ferguson turn over the defense of I‑976 to a private law firm after the suit was filed. Ferguson, a stickler for following the law, refused. Ferguson has been a top target of Eyman’s trash talk for years, owing to his work to hold Eyman accountable for repeatedly violating our public disclosure laws.
It is apparent from the brief the AGO filed late last week that the professionals who work in Ferguson’s office are doing their best to try to save I‑976 by making the best arguments they can muster. But that may not be enough, just as Keep Washington Rolling’s war chest wasn’t enough to overcome I‑976’s bad ballot title.
The plaintiffs assert I‑976 has multiple constitutional defects, and we agree.
If the State were to concede that, then there would be nothing to argue over — the plaintiffs would win by default — so the State has taken the position that the initiative is constitutional. The State has also argued that a preliminary injunction barring I‑976’s implementation would be unwarranted.
Echoing comments made by sponsor Tim Eyman on November 7th, the State’s brief argues that I‑976 is essentially a clone of Eyman’s 2002 initiative, I‑776, which was partially upheld by the State Supreme Court in Pierce County v. State, and therefore the legal challenge to I‑976 should be rejected.
The brief states:
This is the first of a number of arguments in the brief that do not hold water.
Using Draftable, our team at NPI published the text of Initiatives 776 and 976 side by side so that anyone who wants to can compare the measures for themselves. While both measures were definitely marketed by the same individual using the same bumper sticker slogan, they are very different in terms of policy specifics.
For example, with respect to scope, I‑776 targeted for repeal Sound Transit’s motor vehicle excise tax and local MVETs in four counties: King, Snohomish, Douglas, and Pierce. I‑976 targets a much broader slew of taxes and fees.
In addition to Sound Transit’s MVET, I‑976 seeks to repeal:
And with respect to Sound Transit’s MVET, I‑976 is worded quite differently from I‑776. The Supreme Court held that I‑776 was constitutional on Article II, Section 19 (single subject) grounds because I‑776’s language pertaining to Sound Transit’s bond obligations was merely “precatory” (lacking legal effect).
The provisions in I‑976 that concern Sound Transit’s bonds are not precatory and are not housed in the initiative’s intent section as I‑776’s are. Consequently, I‑976 cannot be upheld on the basis that I‑776 was sixteen years ago.
The brief also argues that in adopting I‑976, voters (well, some voters: the majority didn’t vote at all) made a policy choice that should be honored.
The above seems more like a political argument than a legal argument. It resembles statements that Dori Monson has made on his show in support of I‑976.
The notion that taxpayers will save money if I‑976 is implemented is wrong. Washington taxpayers will save nothing from I‑976; the measure is a recipe for more traffic, more pollution, and more inequity in our tax code, not to mention higher vehicle maintenance costs from driving on roads that aren’t being properly cared for. These consequences went entirely unmentioned in the ballot title that the AGO created for the initiative, which Tim Eyman picked as the title he wanted voters to see after he went ballot title shopping in the spring of 2018.
As the plaintiffs have argued, there will be harms — significant harms — if I‑976 is implemented and it is entirely reasonable for the courts to put I‑976 on hold until its constitutionality (or lack thereof) is determined.
Later on, the brief tries to make excuses for the language of the I‑976 ballot title, which is one-sided, dishonest, and unrepresentative of I‑976’s provisions.
Wrong! There is nothing clear about the I‑976 ballot title. It does inform voters what the measure actually does. It’s a bad ballot title… a very bad title.
I emphatically disagree that the title’s wording was “sufficient to give notice that would lead to an inquiry into the text of the measure.”
If I was asked to include this language in one of our research polls to ascertain voter opinions about vehicle fees, I would reject it without a second thought. It’s truly appalling that this was the only language that voters saw on their ballots.
For reference, here is the title in its entirety:
Let’s break it apart, shall we?
The first part of the title says that I‑976 concerns “motor vehicle taxes and fees”. Actually, it concerns a lot more than that. It concerns multimodal transportation infrastructure funding. It concerns the integrity of the state’s transportation budget. It concerns what ought to happen to tax revenue that has been pledged to repay bonds, which are constitutionally protected from being impaired.
It would have been more accurate to say that I‑976 concerns transportation funding because all of the taxes and fees targeted by the initiative support transportation-related accounts at the state, regional, and local levels.
The second part of the title is the concise description. This begins with the phrase “This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees.” Which taxes and fees are affected? The title doesn’t say. Instead, it uses the word “certain”, which is entirely unhelpful. It’s as clear as mud.
Next is the bit “limit annual motor-vehicle-license fees to $30, except voter-approved charges.” This bit is entirely dishonest, as I‑976 does not limit annual motor vehicle license fees to $30 for anyone and even Tim Eyman admits this. Nor does it exempt voter-approved charges from the supposed thirty dollar limitation.
The State concedes in its brief that “space limitations” did not allow “motor vehicle license fees” to be defined, but argues, as noted above, that “it was sufficient to give notice that would lead to an inquiry into the text of the initiative.”
How so?
The phrases “motor vehicle taxes and fees” (from the statement of subject) and “motor-vehicle-license-fees” (from the concise description) are almost identical.
The only difference is the word the presence of the word “license” in phrase number two. The State’s position is essentially that the inclusion of this one different word is sufficient to enable voters to understand that the phrase refers to only “one specific type” of vehicle fee, as opposed to a whole range of vehicle fees.
Sorry, but nope. This argument fails.
In jurisdictions like Seattle, voter-approved fees that support transportation benefit districts are paid annually to renew a vehicle’s registration.
The phrase “limit annual motor-vehicle-license fees to $30, except voter-approved charges” does not differentiate between jurisdictions and it doesn’t even differentiate between different types of state fees.
There is actually more than one type of vehicle fee with “license” in the name at the state level. There’s the “license/registration” fee, the “license service” fee, and then there also are “license plate” fees. Confusing? You betcha!
How on earth are voters supposed to know what this ballot title is referring to?
Even the Department of Licensing avoids using the problematic language “motor vehicle license fee” to the extent it can because it’s a recipe for confusion: it could be conflated with fees paid to obtain or renew a driver’s license.
The DOL “Vehicles” section and “Vehicles” specific navigation menu instead uses the phrases “tabs,” “car tabs,” “register your vehicle,” etc.:
“License” appears only in one DOL menu item, “license plates”.
Plates are physical objects that go on cars as opposed to fees paid to the Department, so that menu item is not as problematic. But imagine if the first link said “How to renew your license”. Most people would likely think that meant their driver’s license, as opposed to their vehicle’s registration. Adding the words “motor vehicle” might lessen the confusion a bit. But it would still be confusing.
In a previous post here on the Cascadia Advocate, I discussed how the ballot title could have been better, and came up with the following as a first draft of a more defensible ballot title that could stand up to scrutiny:
Even the above is still problematic because I‑976 doesn’t actually limit vehicle fees to thirty dollars. So here’s a second, more polished draft:
This version gets rid of the problematic, deceptive reference to a fake thirty dollar limitation and instead informs voters that the measure will lower a bevy of taxes and fees on motor vehicles, but at a significant cost.
The thirty word limitation on the length of the concise description (which only applies to statewide measures, not local ones) is hugely problematic because it forces ballot title writers in the Attorney General’s Office to leave out important details. The length needs to be altered to permit more descriptive ballot titles.
Judge Marshall Ferguson has indicated that after hearing oral argument, he will take a little time to further review the briefs and issue a written ruling either this afternoon or sometime tomorrow. We’ll keep you posted.
# Written by Andrew Villeneuve :: 9:34 AM
Categories: Elections, Litigation
Tags: Permanent Defense, WA-Ballot
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