A very short while ago, King County Superior Court Judge Marshall Ferguson released his ruling on the cross motions for summary judgment in the Initiative 976 legal challenge. The I‑976 legal challenge is the action that the Garfield County Transportation Authority, King County, and the City of Seattle brought against Tim Eyman’s most recent initiative, which sought to repeal billions of dollars in transportation funding at the state, regional, and local levels.
Judge Ferguson had been asked by the plaintiffs and a group of intervenor-plaintiffs to find the initiative unconstitutional on multiple grounds and strike it down; but he declined to do so, finding instead that the plaintiffs had not proved the measure to be unconstitutional beyond a reasonable doubt.
While Ferguson rejected most of the plaintiffs’ constitutional claims, he did not dispose of all of them. Two claims will continue to be litigated, owing to the defendant and the defendant-intervenors’ desire for discovery:
- Does I‑976 violate article I, section 23 by impairing bond obligations?
- 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?
“The parties shall confer with each other and the Court regarding case schedule deadlines for discovery and, if necessary, additional dispositive motions,” Ferguson’s order concludes. “Since this Order does not dispose of all of Plaintiffs’ claims that I‑976 violates the Washington Constitution, the preliminary injunction shall remain in effect until further order of this Court.”
I‑976 may not be going into effect today, but Judge Ferguson’s ruling will definitely please Tim Eyman. It is worth noting that Eyman has been relentlessly attacking Judge Ferguson for several weeks now as a Jay Inslee appointee who is hopelessly biased due the fact that he is a King County judge. Eyman may not have expected to receive a favorable ruling from Ferguson, but he got one.
Tim Eyman owes Judge Ferguson an apology for his inappropriate conduct in the courtroom and his attacks on Ferguson’s integrity in the press. I can’t imagine such an apology will be forthcoming, but it’s definitely owed.
Attorney General Bob Ferguson pronounced himself delighted with the ruling.
“I’m proud of the work of my office’s dedicated attorneys in upholding the will of the voters,” said Ferguson. “We appreciate the court setting aside the antics of Tim Eyman, which made our job defending the will of the voters more difficult. It’s worth noting that the hearing in which Tim Eyman had an outburst, we lost, and the hearing in which Eyman remained silent, we won.”
With all due respect to Attorney General Bob Ferguson, I think it’s inappropriate to suggest that Eyman’s outburst in court was a factor in Judge Marshall Ferguson’s earlier decision. I’ve now spent a good ten hours in Judge Ferguson’s courtroom, and rarely have I seen a more dispassionate judge at work.
Judge Ferguson made it clear last Friday that he is not considering the comments of people who have been writing to him or calling his home in an attempt to express their views on the Garfield County case.
Judge Ferguson granted a preliminary injunction to the plaintiffs because he assessed there was a decent chance they would prevail on at least one of their constitutional claims. The judge reiterated in his ruling today that the plaintiffs have demonstrated that implementation of I‑976 would injure them.
“In support of their injunction claim, Plaintiffs have offered supporting declarations and exhibits establishing that, were I‑976 to be implemented, it would harm them in numerous ways, including drastic reductions in funding for public transit, road and highway improvement projects, ferry service, and projects that are critical from a public safety standpoint,” Ferguson’s order states.
“As this Court previously concluded in granting Plaintiffs’ motion for a preliminary injunction, the Court concludes here that I‑976, if implemented, would result in actual and substantial injury to Plaintiffs.”
Emphasis is mine.
The State of Washington, through the Attorney General’s office had previously tried to argue that the plaintiffs (like the City of Seattle) would not be harmed by I‑976 because there are other means of funding transportation improvements available to them… like selling off real estate. Judge Ferguson rejected those bad arguments, and reaffirmed his rejection of them today.
Justin Leighton of the Washington State Transit Association, one of the plaintiffs, called the ruling unfortunate in a quick briefing distributed to WSTA’s members.
“At this time, we are still digesting the ruling and conferring with the Coalitions Co-Counsel to decided the next steps. No decisions have been made at this time on WSTA’s, or what the Coalition’s next steps are,” Leighton wrote.
It’s critical to understand that Judge Ferguson will not have the final word on the constitutionality of Initiative 976. Whoever lost at the trial court level was bound to appeal the ruling to the Washington State Supreme Court.
At this point, it looks like it’ll be the plaintiffs who file an appeal, but if Judge Ferguson rules against the defendants on the remaining questions after discovery, then the defendants may be filing an appeal of their own as well.
The Supreme Court has in the past overturned initiatives even when they were found to be constitutional at the trial court level. For example, Initiative 1240 (charter schools) largely escaped unscathed in the first round of the legal challenge against it, but the Supreme Court reversed that ruling on appeal.
The plaintiffs will need to convince the Supreme Court that Judge Ferguson got it wrong on most of their constitutional claims in order to secure a ruling that strikes Initiative 976 down. If the measure is not overturned, the consequences for transportation funding will be extremely dire. The Legislature is already struggling to figure out how to move forward if I‑976 were to go into effect.
You can see examples of how I‑976 will negatively affect Washingtonians by viewing our Impact Map (which we released last October).Initiative 976 Impact Map
And, if you’d like to read Judge Ferguson’s ruling in its entirety, it is below.Judge Marshall Ferguson’s order on cross motions for summary judgment