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.