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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.


  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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  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
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