State Supreme Justice Mary Fairhurst
Washington State Supreme Court Justice Mary Fairhurst listens to oral argument in the McCleary case (Photo: Andrew Villeneuve/Northwest Progressive Institute)

Wash­ing­ton State’s high­est court has refused to lift a pre­lim­i­nary injunc­tion bar­ring Tim Eyman’s incred­i­bly destruc­tive Ini­tia­tive 976 from tak­ing effect tomor­row, sus­tain­ing a deci­sion by King Coun­ty Supe­ri­or Court Judge Mar­shall Fer­gu­son in favor of a coali­tion of local gov­ern­ments that was issued a week ago.

The Court was asked by Attor­ney Gen­er­al Bob Fer­gu­son’s office on Mon­day in an emer­gency fil­ing to reverse Fer­gu­son and allow the ini­tia­tive to go into effect.

In a short order issued this after­noon, the Court turned down Fer­gu­son’s request, while grant­i­ng a sep­a­rate motion per­mit­ting the sub­mis­sion of a length­i­er-than-usu­al brief. The order gave no expla­na­tion for the Court’s decision.

Chief Jus­tice Mary E. Fairhurst writes for the majority:

The Court unan­i­mous­ly grants the motion for leave to file over-length response. The Court, by major­i­ty, denies the emer­gency motion for stay pend­ing review.

DATED at Olympia, Wash­ing­ton this 4th day of Decem­ber, 2019.

Although the major­i­ty led by Fairhurst did not explain their rea­son­ing, three jus­tices filed a writ­ten dis­sent in which they state that they would have grant­ed the state’s motion. The dis­sent­ing jus­tices were Debra L. Stephens (the incom­ing Chief Jus­tice), Susan Owens, and Sheryl Gor­don McCloud.

The Court’s order, includ­ing the dis­sent, is below.

State Supreme Court’s order sus­tain­ing injunc­tion against I‑976

The plain­tiffs in the I‑976 legal chal­lenge — who became the respon­dents when Attor­ney Gen­er­al Bob Fer­gu­son’s office asked the Supreme Court to weigh in — argued emphat­i­cal­ly yes­ter­day that it would be improp­er for the Court to over­turn Judge Mar­shall Fer­gu­son’s rul­ing. From the open­ing pas­sages of their brief:

The State’s emer­gency stay motion, filed late on Decem­ber 2nd, 2019, asks this Court in less than forty-eight hours, based on lim­it­ed brief­ing, and with­out the ben­e­fit of oral argu­ment, to over­turn the pre­lim­i­nary injunction.

That result would effec­tive­ly give the State com­plete relief on the mer­its, at least for the months it will take for this Court to address the pro­pri­ety of the issuance of the pre­lim­i­nary injunc­tion and, regard­less of the out­come of dis­cre­tionary review, the peri­od fol­low­ing remand of the case to the tri­al court for a deter­mi­na­tion of the merits.

This Court has declined to grant such extra­or­di­nary emer­gency stays in the past, and should decline to do so here.

The brief’s intro­duc­tion ends by declaring:

The State seems to argue the nov­el and far-reach­ing propo­si­tion that there is some right for vot­ers who sup­port­ed a bal­lot mea­sure to have even an uncon­sti­tu­tion­al ini­tia­tive imple­ment­ed until there is a hear­ing on the mer­its. No case sup­ports that proposition.

It is wrong and should be rejected.

Final­ly, the Court should con­sid­er that the pub­lic inter­est is best served by a quick res­o­lu­tion of the Respon­dents’ con­sti­tu­tion­al claims.

That can only be achieved by deny­ing the stay and the request for inter­locu­to­ry review and allow­ing the tri­al court to prompt­ly resolve the mer­its, a process it has already com­menced in call­ing for a brief­ing sched­ule. At that point, direct expe­dit­ed review by this Court would be appro­pri­ate. Appeal­ing a motion for pre­lim­i­nary injunc­tion only delays that for months.

The State does not meet the stan­dard for an emer­gency stay of a pre­lim­i­nary injunc­tion. The State’s motion should be denied.

Six jus­tices — a two-thirds super­ma­jor­i­ty — appar­ent­ly agreed with these argu­ments, as evi­denced by the Court’s order, while three dis­agreed and would have giv­en Attor­ney Gen­er­al Bob Fer­gu­son the stay that he wanted.

Seat­tle City Attor­ney Pete Holmes, whose office is work­ing on the case in con­junc­tion with attor­neys employed by King Coun­ty and Paci­fi­ca Law Group, applaud­ed the Supreme Court’s refusal to reverse Judge Mar­shall Ferguson.

“The Court’s order right­ly main­tains the sta­tus quo while we have the oppor­tu­ni­ty to ful­ly present our argu­ments that this harm­ful, mis­lead­ing mea­sure should not take effect,” Holmes said in a state­ment react­ing to the order.

With the pre­lim­i­nary injunc­tion affirmed, Ini­tia­tive 976 can­not take effect tomor­row as intend­ed by Eyman. It will like­ly remain frozen in ice until the Supreme Court decides whether the plain­tiffs in Garfield Coun­ty et al v. State of Wash­ing­ton have proved that it is unconstitutional.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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