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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.

Friday, January 10th, 2020

Weekend Reading: All of the possible ways Tim Eyman’s I‑976 violates the Constitution

Today, the coali­tion of plain­tiffs suing to con­sign Tim Eyman’s Ini­tia­tive 976 to the dust­bin of Wash­ing­ton State polit­i­cal his­to­ry filed their Motion for Sum­ma­ry Judg­ment, request­ing that King Coun­ty Supe­ri­or Court Judge Mar­shall Fer­gu­son find the mea­sure uncon­sti­tu­tion­al and per­ma­nent­ly enjoin its enforce­ment.

In a 20,495 word mem­o­ran­dum, the coali­tion’s attor­neys pow­er­ful­ly lay out the case for I‑976 to be struck down, cit­ing more than a dozen ways in which the mea­sure vio­lates the Wash­ing­ton State Con­sti­tu­tion.

“I‑976 had a decep­tive bal­lot title that mis­lead the vot­ers,” the brief’s con­cise con­clu­sion begins. “It lied about ensur­ing car tabs would be $30.”

“It com­bined mul­ti­ple unre­lat­ed sub­jects to cob­ble togeth­er enough sup­port to get the mea­sure passed, a clas­sic uncon­sti­tu­tion­al log-rolling guise.”

“I‑976 fails to set forth all statutes it amends ren­der­ing its appli­ca­tion con­fus­ing.”

“It intrudes on local home rule pow­ers of tax­a­tion for local pur­pos­es, seeks to over­turn local elec­tion results, and requires diver­sion of local­ly approved tax­es.”

“I‑976 impairs con­tract oblig­a­tions by seek­ing to elim­i­nate Burien’s VLF [vehi­cle license fee] that have been pledged to secure its bonds.”

“Each of these mat­ters are con­sti­tu­tion­al vio­la­tions requir­ing that I‑976 be struck down,” the brief con­cludes. “Plain­tiffs respect­ful­ly request that this Court grant them sum­ma­ry judg­ment and declare I‑976 uncon­sti­tu­tion­al.​”

The brief itself clocks in at six­ty-five pages, and exhaus­tive­ly dis­cuss­es the defects that make I‑976 the lat­est fatal­ly flawed Tim Eyman mea­sure. There are also a sig­nif­i­cant num­ber of pages of sup­port­ing doc­u­men­ta­tion.

This is whol­ly inten­tion­al. It’s the respon­si­bil­i­ty of the plain­tiffs to prove beyond a rea­son­able doubt that I‑976 vio­lates the Con­sti­tu­tion. They have the bur­den of proof. Accord­ing­ly, the coali­tion suing to defeat I‑976 has thor­ough­ly exam­ined the ini­tia­tive under a micro­scope, and left no stone unturned in its legal analy­sis.

This is eas­i­ly one of the most com­pre­hen­sive and sat­is­fy­ing briefs I’ve ever read. Kudos to King Coun­ty, the City of Seat­tle, and Paci­fi­ca Law Group on a job well done. By far, my favorite part of the brief is the state­ment of issues, which nice­ly serves as an author­i­ta­tive, defin­i­tive list of all of the ways in which this dump­ster fire of an ini­tia­tive like­ly vio­lates the Wash­ing­ton State Con­sti­tu­tion.

Here is that list, for your read­ing enjoy­ment on this sec­ond week­end of Jan­u­ary.

III. STATEMENT OF ISSUES

  1. Does the I‑976 bal­lot title vio­late arti­cle II, sec­tion 19 sub­ject-in-title require­ments because it deceives vot­ers with the mis­rep­re­sen­ta­tions that “vot­er approved charges” are an excep­tion to the $30 cap on motor vehi­cle license fees, and that vot­ers will pay no more than $30 when licens­ing a vehi­cle?
  2. Does the I‑976 bal­lot title vio­late arti­cle II, sec­tion 19 sub­ject-in-title require­ments because it fails to include numer­ous nec­es­sary sub­jects and does not prompt inquiry into those omit­ted sub­jects?
  3. Does I‑976 vio­late the arti­cle II, sec­tion 19 sin­gle sub­ject require­ments because it com­bines mul­ti­ple sub­jects that are not ger­mane to each oth­er?
  4. Does I‑976 vio­late arti­cle II, sec­tion 37 by amend­ing exist­ing statutes with­out set­ting the amend­ments forth in full, there­by result­ing in con­fu­sion as to the effect of the new law?
  5. Does I‑976 vio­late arti­cle XI, sec­tion 12 by depriv­ing munic­i­pal gov­ern­ments of vest­ed local tax­ing author­i­ty for local pur­pos­es pri­or to expi­ra­tion of the local tax?
  6. Does I‑976 vio­late arti­cle I, sec­tion 19 by using a statewide vote to over­ride exist­ing local votes and dilut­ing the voice of local vot­ers on mat­ters of local con­cern?
  7. Does I‑976 vio­late arti­cle VII, sec­tion 5 by divert­ing tax dol­lars from the pur­pos­es approved by local vot­ers?
  8. Does I‑976 vio­late arti­cle I, sec­tion 23 by impair­ing bond oblig­a­tions?
  9. Does I‑976 vio­late Washington’s sep­a­ra­tion of pow­ers doc­trine by intrud­ing on the exec­u­tive func­tion of admin­is­ter­ing bond repay­ment?
  10. Does I‑976 vio­late Washington’s sep­a­ra­tion of pow­ers doc­trine by uncon­sti­tu­tion­al­ly del­e­gat­ing leg­isla­tive func­tions regard­ing the effec­tive dates of laws and the legal force of cer­tain statutes to the dis­cre­tionary deci­sions of a munic­i­pal gov­ern­ment?
  11. Does I‑976 vio­late arti­cle I, sec­tion 12 by con­fer­ring a spe­cial priv­i­lege on a pri­vate cor­po­ra­tion by requir­ing DOL [Depart­ment of Licens­ing] to use the Kel­ley Blue Book val­u­a­tion prod­uct?

That’s eleven total poten­tial vio­la­tions of the Con­sti­tu­tion iden­ti­fied by the plain­tiffs. With cer­tain kinds of vio­la­tions, sev­er­abil­i­ty does not come into play, owing to the nature of the vio­la­tion, so a sin­gle strike against a mea­sure can be suf­fi­cient to void it in its entire­ty. (Logrolling would be a good exam­ple.)

Back in 2015, when we were work­ing against the last Tim Eyman mea­sure that appeared on the bal­lot (I‑1366), I often described it as “uncon­sti­tu­tion­al every way to Sun­day.” In 2016, the Supreme Court emphat­i­cal­ly agreed that I‑1366 was uncon­sti­tu­tion­al, unan­i­mous­ly strik­ing down the mea­sure in its entire­ty.

I‑976 shares the same char­ac­ter­is­tics as I‑1366. Giv­en how bad­ly writ­ten it is, I don’t think it stands much of a chance of with­stand­ing con­sti­tu­tion­al scruti­ny.

Tomor­row, we’ll have anoth­er install­ment of Week­end Read­ing that excerpts anoth­er one of my favorite pas­sages from the motion for sum­ma­ry judg­ment filed by the coali­tion of plain­tiffs in Garfield Coun­ty et al v. State of Wash­ing­ton et al.

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7 Comments

  1. You think that Tim Eyman would have learned by now. Nobody has the right to pass leg­is­la­tion that denies local Tax­ing juris­dic­tions the abil­i­ty to deter­mine for them­selves. Tim’s ulti­mate tar­get is Sound Tran­sit. Which he has a par­tic­u­lar vile hatred of.

    # by Mark Noonan :: January 10th, 2020 at 9:25 PM
  2. Strike one, strike two, strike three… no, wait, make that eleven strikes against I‑976! Wowza!

    # by Edward Glume :: January 17th, 2020 at 8:11 PM
  3. I’m notic­ing that quite a few of the alleged vio­la­tions con­cern bills, which are prod­ucts of the state leg­is­la­ture. An ini­tia­tive, such as I‑976, is dif­fer­ent and dis­tinct from a bill, as it is a prod­uct of the peo­ple of Wash­ing­ton, and not the state. There­fore, it appears that these vio­la­tions in par­tic­u­lar are not vio­la­tions at all. Per­haps the coali­tion of plain­tiffs should be pay­ing more atten­tion to what our state con­sti­tu­tion actu­al­ly says, instead of what they want it to say.

    # by Kaleb Fisler :: January 19th, 2020 at 10:42 AM
  4. Ini­tia­tives must fol­low the same con­sti­tu­tion­al rules that bills do, Kaleb.

    Both are kinds of pro­posed statutes. A bill is a pro­posed law in the Leg­is­la­ture; an ini­tia­tive is a pro­posed law that goes before the peo­ple for con­sid­er­a­tion.

    It does not mat­ter where the law orig­i­nates from — it must com­ply with the Con­sti­tu­tion, peri­od. The Con­sti­tu­tion is the supreme law of the land. A statute can­not vio­late the state’s plan of gov­ern­ment, not even if vot­ers approve it.

    This is con­sti­tu­tion­al law 101.

    The plain­tiffs are rep­re­sent­ed by coun­sel (Paci­fi­ca Law Group) with a long his­to­ry of lit­i­gat­ing thorny con­sti­tu­tion­al law ques­tions. It’s amus­ing that you think they don’t know what they’re talk­ing about…

    # by Andrew Villeneuve :: January 19th, 2020 at 11:27 AM
  5. Wow, that’s a lot of con­sti­tu­tion­al vio­la­tions…

    # by Tommy Wanasaki :: January 20th, 2020 at 3:00 PM
  6. You’ve proven that I was mis­tak­en. You were right, I was wrong. I do still have a lot to learn about con­sti­tu­tion­al law after all. How­ev­er, I find it very telling that there are com­plaints about the con­sti­tu­tion­al­i­ty of I‑976, where­as dur­ing the 2018 Novem­ber elec­tions, there was a sim­i­lar con­cern about I‑1639, yet it was dis­re­gard­ed.

    (Back­ground: Let the peo­ple vote? Nope! Tim Eyman calls for I‑1639 to be blocked from bal­lot.)

    Could it pos­si­bly be that Tim Eyman was opposed to I‑1639 not only because he dis­agreed with it, but more impor­tant­ly, because it vio­lat­ed state law?

    For instance, the text on the back of the peti­tions for the ini­tia­tive was quite small, and the text was quite lengthy, mak­ing it hard to read. State law requires that the text of an ini­tia­tive on a peti­tion be read­able, which seemed dubi­ous in this case. Of course, you could say that is debat­able. How­ev­er, what’s not debat­able is the fact that the text of the ini­tia­tive on the peti­tion did not include the under­lin­ing of lan­guage that would be new state law if the ini­tia­tive passed. Also, the text of the ini­tia­tive on the peti­tion did not include strikethroughs indi­cat­ing any word­ing in state law that would be repealed if the ini­tia­tive passed.

    When I‑1639 was chal­lenged, how­ev­er, none of this mat­tered to the State Supreme Court, which decid­ed that the peti­tion for the ini­tia­tive com­plied with state law, and so the ini­tia­tive end­ed up on the Novem­ber 2018 bal­lot.

    There­fore, I find it amus­ing that you did­n’t seem to have any com­plaints about I‑1639 in the above press release, but have a whole host of them about I‑976. The hypocrisy is evi­dent.

    # by Kaleb Fisler :: January 21st, 2020 at 8:03 AM
    • You are com­par­ing apples and oranges, Kaleb.

      The Supreme Court has repeat­ed­ly made clear that it will not con­sid­er the con­sti­tu­tion­al­i­ty of statewide ini­tia­tives before an elec­tion is held. It only enter­tains scope and pro­ce­dur­al chal­lenges before a mea­sure has been decid­ed by vot­ers. And even then, the courts have been very reluc­tant to block a mea­sure from pro­ceed­ing to the bal­lot for vot­ers to con­sid­er.

      The apple: I‑1639 was chal­lenged before the Novem­ber 2018 gen­er­al elec­tion on pro­ce­dur­al (not con­sti­tu­tion­al) grounds. The Supreme Court ruled, unan­i­mous­ly, that “there is no leg­isla­tive man­date that the sec­re­tary must decline to cer­ti­fy and present to vot­ers an ini­tia­tive based on fail­ure to com­ply with the require­ment that “a read­able, full, true, and cor­rect copy” of the ini­tia­tive appear on the back of every peti­tion, or on leg­i­bil­i­ty or for­mat­ting con­cerns.” The Court rea­soned:

      This action was not prop­er­ly brought under RCW 29A.72.240. The pur­pose of this statute is nar­row; it does not allow for pre­elec­tion judi­cial review of the form, process, sub­stance, or con­sti­tu­tion­al­i­ty of an ini­tia­tive peti­tion. The plain lan­guage of RCW 29A.72.240 lim­its the court to exam­in­ing whether the peti­tions “con­tain the req­ui­site num­ber of sig­na­tures of legal vot­ers.” Thus, the man­damus relief avail­able under this statute is lim­it­ed to enforc­ing the num­ber-of-sig­na­ture require­ments and is not avail­able where, as here, there is no actu­al chal­lenge to the count­ing of sig­na­tures.

      In oth­er words: there may have been a defect with the peti­tions, but that defect can­not be grounds for the dis­qual­i­fi­ca­tion of the peti­tions.

      The orange: I‑976 is cur­rent­ly being chal­lenged on con­sti­tu­tion­al grounds in the wake of an elec­tion. It has been tem­porar­i­ly enjoined from imple­men­ta­tion while the chal­lenge is con­sid­ered. The plain­tiffs in the case did not bring a con­sti­tu­tion­al chal­lenge pri­or to the elec­tion, and that’s because the courts would not have con­sid­ered it.

      If I‑1639 is uncon­sti­tu­tion­al, then it should be struck down. We do not believe it is uncon­sti­tu­tion­al. But if it is, then it should be deemed unen­force­able just as Eyman’s past uncon­sti­tu­tion­al ini­tia­tives have been.

      For that to hap­pen, a chal­lenge would need to be brought, and the mea­sure’s lack of con­sti­tu­tion­al­i­ty proved beyond a rea­son­able doubt.

      # by Andrew Villeneuve :: January 26th, 2020 at 11:24 AM