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 19th, 2019

Plaintiffs challenging Tim Eyman’s I‑976 ask for injunction to block its implementation

Tim Eyman’s incred­i­bly destruc­tive Ini­tia­tive 976 should be blocked from tak­ing effect until its con­sti­tu­tion­al­i­ty (or lack there­of) can be deter­mined by the courts, a coali­tion of plain­tiffs chal­leng­ing the mea­sure declared in a request for a pre­lim­i­nary injunc­tion filed this week before Supe­ri­or Court Judge Mar­shall Fer­gu­son.

The mea­sure, which vot­ers con­sid­ered on the Novem­ber 2019 bal­lot and which is des­tined to pass, attempts to repeal bil­lions of dol­lars in fund­ing for bipar­ti­san, vot­er-approved trans­porta­tion invest­ments at the state, region­al, and local lev­els.

“Whether the com­mu­ni­ties are large or small, rur­al or urban, the dam­age will be per­va­sive, and there is no cor­ner of Wash­ing­ton that avoids harm,” attor­neys for the plain­tiffs wrote. “That harm will only deep­en and spread with time.”

They then cit­ed two exam­ples of juris­dic­tions that will be imme­di­ate­ly and severe­ly harmed if I‑976 is not stopped from tak­ing effect on Decem­ber 5th, 2019:

For exam­ple, the City of Seat­tle alone faces the loss of $2,680,000 in rev­enue in just the first twen­ty-sev­en days of I‑976’s imple­men­ta­tion, which over time could lead to approx­i­mate­ly 175,000 annu­al tran­sit hours of King Coun­ty Metro ser­vice being cut. Plain­tiff Garfield Coun­ty Trans­porta­tion Author­i­ty, pro­vid­ing essen­tial ‘life­line’ sup­port to the State’s small­est coun­ty, would face a cut of more than half its ser­vices.

An injunc­tion bar­ring I‑976 from going into effect would keep dol­lars flow­ing to cru­cial projects and ser­vices while the legal chal­lenge against I‑976 is con­sid­ered by the courts. Plain­tiffs want Judge Fer­gu­son to order that the State and its offi­cials be enjoined from tak­ing any action to imple­ment I‑976 dur­ing the pen­den­cy of the law­suit, and direct the Depart­ment of Licens­ing to go on col­lect­ing all fees, tax­es, and charges that I‑976 seeks to repeal while the mea­sure is stayed..

“An injunc­tion is war­rant­ed because Plain­tiffs are like­ly to pre­vail on the mer­its of their con­sti­tu­tion­al claims,” plain­tiffs’ coun­sel explained. “Wash­ing­to­ni­ans were not pre­sent­ed with one clear and con­sti­tu­tion­al choice at the bal­lot box. Instead, as with pri­or uncon­sti­tu­tion­al ini­tia­tives by the same spon­sor, I‑976 is a poor­ly draft­ed hodge-podge that vio­lates mul­ti­ple con­sti­tu­tion­al pro­vi­sions.”

Specif­i­cal­ly, plain­tiffs say they instead to prove that:

  • I‑976 vio­lates the sin­gle sub­ject rule (the same defect that has result­ed in the demise of sev­er­al pre­vi­ous Tim Eyman ini­tia­tives)
  • I‑976 vio­lates the sub­ject-in-title rule because the bal­lot title incor­rect­ly
    states that vot­er-approved fees are not affect­ed and does not dis­close
    all of the initiative’s addi­tion­al sub­jects
  • I‑976 vio­lates Arti­cle II, Sec­tion 37 of the Wash­ing­ton State Con­sti­tu­tion because it does not ful­ly set forth all amend­ments to exist­ing statutes
  • I‑976 vio­lates sep­a­ra­tion of pow­ers prin­ci­ples by intrud­ing on admin­is­tra­tive mat­ters prop­er­ly left for the exec­u­tive branch.
  • I‑976 impairs exist­ing con­tracts in vio­la­tion of the con­tracts clause

It is unlike­ly that we will ever find out if all of these defects are present in the ini­tia­tive because the courts do not like to take up moot ques­tions. If I‑976 is held uncon­sti­tu­tion­al because it con­tains mul­ti­ple sub­jects, its oth­er con­sti­tu­tion­al defects will become irrel­e­vant. The ini­tia­tive will be struck down in its entire­ty if the first alleged defect is present, because logrolling is a fatal defect.

Accom­pa­ny­ing the motion for a pre­lim­i­nary injunc­tion is a long list of dec­la­ra­tions and exhibits that pro­vide evi­dence in sup­port of plain­tiffs’ argu­ments.

Last week, Tim Eyman tried to dis­miss this legal chal­lenge as a slop­py attempt to thwart I‑976, but he clear­ly does­n’t believe that spin him­self, as he has begun fran­ti­cal­ly con­tact­ing coun­ty com­mis­sion­ers in coun­ties where I‑976 passed, urg­ing them to inter­vene in the law­suit on his behalf.

If you read the motion, you can see it’s well researched and well argued… just what I would expect from the attor­neys whose names are on it. (The City of Seat­tle is rep­re­sent­ed by Pete Holmes and his staff, King Coun­ty by Dan Sat­ter­berg and his staff, and the oth­er plain­tiffs by Paci­fi­ca Law Group, which has rep­re­sent­ed this orga­ni­za­tion, the North­west Pro­gres­sive Insti­tute, in sep­a­rate mat­ters.)

Motion for an injunc­tion to block Eyman’s I‑976

Around mid­way through, the motion for a pre­lim­i­nary injunc­tion describes I‑976’s dis­hon­est pro­vi­sions and bal­lot title as “uncon­scionable and uncon­sti­tu­tion­al.”

Those words should be part of the even­tu­al epi­taph for Ini­tia­tive 976.

HERE LIES
INITIATIVE 976
AN UNCONSCIONABLE, UNCONSTITUTIONAL INITIATIVE THAT WAS DISHONESTLY WRITTEN AND DISHONESTLY MARKETED TO VOTERS
MAY IT BE AN EXAMPLE OF HOW NOT TO CRAFT FISCAL POLICY

Every Tim Eyman ini­tia­tive that has pre­vi­ous­ly been chal­lenged in the courts has been over­turned in whole or in part, so it’s not much of a leap to pre­sume that Ini­tia­tive 976 will be struck down as uncon­sti­tu­tion­al before long.

As the plain­tiffs have said, I‑976 is brim­ming with con­sti­tu­tion­al defects, just like the last mea­sure Eyman got past the vot­ers (I‑1366 from 2015), which I char­ac­ter­ized as uncon­sti­tu­tion­al every way to Sun­day.

Eyman was supreme­ly con­fi­dent that I‑1366 would be upheld despise its obvi­ous uncon­sti­tu­tion­al­i­ty. When the rul­ing came down that I‑1366 was uncon­sti­tu­tion­al, Eyman was stunned, and a KING5 cam­era cap­tured his reac­tion for pos­ter­i­ty.

Eyman in disblief over I-1366 court decision

Tim Eyman can’t believe the ver­dict in Lee v. State (Cour­tesy of KING5)

This time around, Eyman seems to be har­bor­ing no illu­sions that he’ll pre­vail.

In addi­tion to disin­gen­u­ous­ly grous­ing that Attor­ney Gen­er­al Bob Fer­gu­son is try­ing to “sab­o­tage” the mea­sure that he failed to put any care into craft­ing when he wrote it, Eyman is also irre­spon­si­bly urg­ing his fol­low­ers to “refuse to pay their car tabs if their bill includes fees or tax­es elim­i­nat­ed by I‑976”.

Break­ing the law has got­ten Tim Eyman into heaps of trou­ble that Eyman has been unable to dig his way out of. If Eyman’s fol­low­ers don’t want to fol­low him off the prover­bial cliff, they’ll decline his exhor­ta­tions to become free­load­ing law­break­ers.

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