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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.

Wednesday, February 12th, 2020

Lawsuit against I‑976 to continue as judge rejects most claims of unconstitutionality

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

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One Comment

  1. Well. He got his way; good for him. 

    # by Mark W. Noonan :: February 12th, 2020 at 9:49 PM

One Ping

  1. […] Fer­gu­son ruled that two sec­tions of the ini­tia­tive are uncon­sti­tu­tion­al, after uphold­ing most of the mea­sure in a per­plex­ing order last month. The two uncon­sti­tu­tion­al pro­vi­sions (by Fer­gu­son’s reck­on­ing) are Sections […]