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.

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:

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.

Adjacent posts

  • Donate now to support The Cascadia Advocate


    Thank you for read­ing The Cas­ca­dia Advo­cate, the North­west Pro­gres­sive Insti­tute’s jour­nal of world, nation­al, and local pol­i­tics.

    Found­ed in March of 2004, The Cas­ca­dia Advo­cate has been help­ing peo­ple through­out the Pacif­ic North­west and beyond make sense of cur­rent events with rig­or­ous analy­sis and thought-pro­vok­ing com­men­tary for more than fif­teen years. The Cas­ca­dia Advo­cate is fund­ed by read­ers like you: we have nev­er accept­ed adver­tis­ing or place­ments of paid con­tent.

    And we’d like it to stay that way.

    Help us keep The Cas­ca­dia Advo­cate edi­to­ri­al­ly inde­pen­dent and freely avail­able by becom­ing a mem­ber of the North­west Pro­gres­sive Insti­tute today. Or make a dona­tion to sus­tain our essen­tial research and advo­ca­cy jour­nal­ism.

    Your con­tri­bu­tion will allow us to con­tin­ue bring­ing you fea­tures like Last Week In Con­gress, live cov­er­age of events like Net­roots Nation or the Demo­c­ra­t­ic Nation­al Con­ven­tion, and reviews of books and doc­u­men­tary films.

    Become an NPI mem­ber Make a one-time dona­tion

Post a Comment

By submitting a comment using the form below, you acknowledge that you understand and accept the terms of the Northwest Progressive Institute's User Agreement, and you agree to abide by our Commenting Guidelines. We will not publish or share your email address. See our Privacy Promise for more information. Your comment must be submitted with a name and email address as noted below. *

*
*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>