Political scammer Tim Eyman and his cohorts lost another court battle today when King County Superior Court Judge Marshall Ferguson ruled that his previously-issued injunction barring implementation of Eyman’s incredibly destructive Initiative 976 would remain in effect for the time being.
“It is hereby ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Emergency Motion is GRANTED,” Judge Ferguson wrote in a brief order dated today, March 27th. “The date to lift the preliminary injunction entered in this matter on November 27, 2019 is continued from March 27, 2020 until such date when the Washington Supreme Court rules on Plaintiffs’ Emergency Motion for Stay Pending Review.”
The judge’s order effectively preserves the status quo, allowing local governments like the City of Seattle to continuing receiving vehicle fee revenue until the Supreme Court decides what should happen to the injunction.
It’s the latest twist in a legal battle that dates back to last autumn, after a submajority of Washington voters passed Initiative 976, Eyman’s most recent con. I‑976 falsely promised voters that they could get “thirty dollar car tabs” without mentioning that this would likely necessitate the elimination of billions in funding for Amtrak Cascades, the Washington State Patrol, voter-approved Sound Transit Link light rail expansion, bus service, and road maintenance in over sixty cities.
After Election Day, Seattle, King County, and a coalition of plaintiffs represented by Pacifica Law Group (which we at NPI are proud to acknowledge as the firm that represented us when we applied for tax-exempt status) filed a lawsuit contending that I‑976 was unconstitutional in more than a dozen different ways.
The case landed on King County Superior Court Judge Marshall Ferguson’s docket.
Judge Ferguson considered and then granted the plaintiffs’ request for a preliminary injunction barring I‑976 from going into effect in early December 2019.
Attorney General Bob Ferguson, who is required by law to defend the initiative, tried to get the Washington State Supreme Court to nix the preliminary injunction, but a majority of the Court denied his motion.
I‑976 remained on ice through the holiday season and into the new year.
In February, Judge Ferguson heard a whole day of oral argument on the constitutionality of I‑976 from attorneys representing most of the parties. The following week, he rejected most of plaintiffs’ arguments against the measure, but reserved judgment as to the constitutionality of two sections of the measure.
Earlier this month, Judge Ferguson found those two remaining provisions unconstitutional. He ordered them severed from the rest of the initiative, but kept the injunction in place at least through today, March 27th, to allow the parties an opportunity to present arguments for and against it. His order noted that the parties could initiate the process of seeking appellate review if they so wished.
That prompted the plaintiffs to ask the Supreme Court to sustain the injunction.
For the past few days, there have thus been two theaters in the I‑976 legal battle: the original theater in King County Superior Court, and a second one in the Washington State Supreme Court, where briefs have been piling up.
After the plaintiffs made their move at the appellate level, Attorney General Bob Ferguson complained that his office needed more time to prepare.
“Plaintiffs filed a thirty-four-page motion to stay at 4:30 PM yesterday, March 24th,” Ferguson wrote in a letter to the Court dated this past Wednesday.
“They raise five different constitutional claims, and attach thousands of pages of exhibits. A team of attorneys in my Office has been preparing a response since the moment we received Plaintiffs’ filing, but the Court’s response deadline gives them less than forty hours to complete their work. My complaint is not that this is hard on them; my team is willing to work as hard as it takes.”
“But no matter how hard they work, this short period of time is insufficient to adequately brief these issues on behalf of the public.”
The Court, evidently sympathetic, granted Ferguson’s request for more time.
State attorneys made full use of the extended window to finish their reply brief. They filed it with the Supreme Court this morning, only a few hours before the hearing scheduled by Judge Ferguson at the trial court level.
Judge Ferguson ultimately opted not to hold a hearing at all, and relied on the written briefs to reach his decision, with no oral argument.
The State and Pierce County strenuously argued that Ferguson should not extend the injunction because the case had moved to the appellate level.
“An extension of the preliminary injunction is unnecessary because this issue is properly before the state Supreme Court,” state attorneys contended.
“An extension of the preliminary injunction is also unwise, as it risks needless confusion. In light of Plaintiffs’ request to file a reply brief, the Supreme Court will not be able to rule on their emergency motion until at least 1:00 PM. This creates a risk of inconsistent action by this Court and the Supreme Court.”
“For example, the Supreme Court may determine that a stay is not appropriate. An order by this Court extending the preliminary injunction would appear to be inconsistent, creating confusion as to whether I‑976 has taken effect and potentially necessitating further action to obtain clarity.”
This tortured argument was swiftly denounced by the plaintiffs’ attorneys.
“Defendants the State and Pierce County continue to urge this Court not to grant a reasonable, limited continuance until the Washington Supreme Court can decide Plaintiffs’ Appellate Stay Motion because the Supreme Court is aware of the time sensitive nature of the request before that Court. This is nonsensical.”
“The Supreme Court is equally aware that the parties have fully briefed Plaintiffs’ request for a temporary stay at this court. The Supreme Court clearly is expediting review of Plaintiffs’ Appellate Stay Motion, but has not guaranteed a decision by today. Nor would Plaintiffs’ requested continuance cause ‘confusion,’ as Defendants’ contend. To the contrary, Plaintiffs seek a continuance expressly so that the Supreme Court can act on this issue, and only until the Supreme Court does so.”
The plaintiffs’ attorneys concluded: “An injunction that protects rights of this magnitude, which this court has acknowledged will result in irreparable harm should it be lifted, should not be allowed to lapse simply because Plaintiffs have sought relief in all the courts to which they were entitled. A far better course of action, legally and practically, is for a temporary extension of the injunction until the Supreme Court weighs in on the substantive issues presented here.”
Judging by Judge Ferguson’s order, he found this argument persuasive.
With no Supreme Court decision having been reached with respect to the fate of the injunction as of this afternoon, Judge Ferguson wisely concluded that it would be prudent to keep the injunction in place until the Supreme Court does weigh in.
That left Tim Eyman howling mad.
The disgraced initiative sponsor and notorious office chair thief had expected the injunction to lapse and appears stunned that it didn’t. Earlier this week, he told his followers that I‑976 would be going into effect today, having already told them earlier this month that I‑976 had gone into effect.
“None of us will be getting thirty dollar tabs,” Eyman seethed after learning of Judge Ferguson’s ruling. (He’s right about that, at least: I‑976 would not result in anyone’s vehicle fees being lowered to thirty dollars; the lowest anyone would pay is $43.25, as Eyman himself has admitted. “Thirty dollar car tabs” is a big fat lie.)
“It was supposed to happen today. It didn’t,” Eyman continued.
He went on:
“I am beyond furious.”
And, for good measure, a couple paragraphs later, he declared:
“I am thoroughly disgusted.”
Eyman blamed Attorney General Bob Ferguson for the continuance of the injunction, hilariously claiming that if Ferguson had only filed his brief with the Supreme Court sooner, then the injunction would have lapsed.
If Eyman really believes what he’s telling his followers, then it just reinforces our view that he does not understand how the judicial branch of our government works, despite having been through this process many times before. (More than half a dozen of his prior initiatives have been challenged as unconstitutional.)
The odds were always good that the injunction was going to be kept in place, because it’s the logical course of action. If the injunction were to lapse, the people’s public services would suffer an irreparable injury from I‑976.
If the initiative is unconstitutional, it should not be allowed to go into effect.
On the other hand, if the Supreme Court decides that the measure is constitutional — which would be a miscarriage of justice, because it’s loaded with constitutional defects — refunds could always be issued to affected taxpayers.
Judges and justices understand that bells can’t be unrung, so they generally favor preservation of the status quo while a case is being litigated.
The injunction preserves the status quo. If I‑976 is struck down, the injunction will become permanent. If I‑976 is upheld, the injunction will go away.
Until then, it should just be left in place.
8 Comments
If the taxes were held in limbo till final judgment were made things might move a little quicker. I personally was not in favor of the initiative but it was the vote of the people in the state and that is the issue.
At the state level, vehicle fees are being held in escrow through the duration of the case. Just not at the local level.
This case is now before the Supreme Court and they will decide how quickly they want to act on it. The trial court dispensed with the case in a few months, which is pretty good for a complex case with lots of parties. Complicated litigation can go on for years and years.
Most Washingtonians registered to vote did not cast a vote on I‑976, so it wasn’t actually the vote of the people in the state. It was a vote of some of them. Turnout was the seventh-worst in state history and over 46% of those turning out voted no. That meant that I‑976 passed with the support of just 23.44% of the state’s 4.5 million registered voters.
Is this not true of most measures voted on, pass or fail. 100% never vote, and it is always a small portion of any states population that decides pass or fail.
To argue it was the lowest turnout is nonsense. There is always going to be some turnout that is the lowest. That is a mathematical fact. Just as there will be one that is the greatest number of turnouts. That is not a determining factor. If states are concerned about the number that out, then they should set a minimum number of turnout for a measure being voted on to be valid.
Of course that would be unconstitutional.
It does not matter if you are for or against the measure, what is important is upholding the will of the people.
Obviously those that did not vote could care [editor’s note: the commenter means couldn’t care] less, or they would have voted. Of those that did vote, they have spoken. That is how are system works. The system is more important than some silly measure.
Fighting the outcome is doing more harm to our system than the measure itself. If in fact the measure does have the effect they claim, they can always use the vote of the people the next time around, and will have data to backup their argument. But for government to try to circumvent the vote of the people, undermines the system and only give rise to the argument “why vote, my vote does not count anyway”! We already have that in the presidential election.
Most of your points here are in error, Bryon, but you’re not entirely wrong. Let’s start with what you are correct on.
You state “100% never vote.” I think you meant to say that we never see one hundred percent participation, as opposed to one hundred percent of the population never votes.
And that is true: we’ve never had one hundred percent voter turnout. However, we’ve gotten close. In the 2008 and 2012 presidential elections, for instance, we had over 80% turnout… that’s greater than four-fifths. More than double the participation we saw in the 2015 and 2017 local election cycles.
You also state: “There is always going to be some turnout that is the lowest. That is a mathematical fact.”
This is true, but what is also true is that our low turnouts don’t have to be in the thirties and forties. If we stopped holding elections in odd-numbered years, we’d pretty much be assured of always having turnout greater than fifty percent, because in Washington State, majorities consistently turn out for midterm and presidential elections.
It was not until the 1970s that Washingtonians started considering statewide initiatives and referenda in odd-numbered years. Before that, state level elections were only held in even numbered years, and turnout was consistently higher than what we’ve seen in recent years.
It absolutely matters how high voter turnout is, because our system of government is a democracy. Again, there is an enormous difference between eighty percent turnout and forty percent turnout; in the latter scenario, turnout is higher by a factor of two. (A mathematical fact!)
Laws are supposed to be made by the many, not a few. We don’t really have a government “of, by, and for the people” if most people are not voting. Laws derive their legitimacy from the just consent of the governed, whether made directly by initiative in a society with direct democracy, or indirectly via representative government.
With regards to minimum turnout requirements, they’re not unconstitutional if they’re in the Constitution itself. Did you know that local bond measures cannot pass unless forty percent of the electorate turns out? That’s an example of a minimum turnout requirement. We could have a similar requirement for state-level ballot measures if we wanted, and it would be good if we did have one.
In the Legislature, laws cannot be passed except by absolute majority vote. Twenty-five senators must vote aye for a bill to get out of the Senate. Fifty representatives must vote aye for a bill to get out of the House. (Article II, Section 22.) This is because the Founders didn’t want Washington’s laws being made by a few. They believed in majority rule.
I‑976 would have failed if it were required to pass by the same rules that bills are required to pass by.
Under those rules, an abstention is akin to a no vote.
It is accurate to say that 23.44% of Washington voters (a submajority) voted for I‑976, as that is the percentage of registered voters who voted aye. Everyone else either voted no or didn’t vote.
We can’t be sure if all of those aye voters actually want I‑976 to be implemented, because I‑976 was fraudulently advertised to them. No one, for example, will get “thirty dollar car tabs” if I‑976 is implemented. The lowest anyone would pay is $43.25.
And no “voter-approved charges” will be exempt from being rolled back by I‑976 either, something else the ballot title falsely claims. Perhaps most importantly of all, the ballot title did not explain what the consequences of eliminating vehicle fees would be. So people couldn’t make an informed decision using the ballot title itself.
All laws must comport with our plan of government, which is the Constitution. Unconstitutional laws should not be allowed to stand. Here, the process and the outcome it produced were both unjust. The lawsuit filed against I‑976 seeks to correct this injustice. It is the vote on I‑976 that undermines our system of government, and it is the lawsuit that seeks to protect Washington and its future from harm.
The voters approved it, and not for the first time. Judge Ferguson should have recused himself, for his employer is the City of Seattle, one of the litigant parties. Corruption at its best, of course to be expected in Seattle.
Judge Ferguson is a King County Superior Court judge, Wooja. That means he is employed by the State of Washington (the defendant in the case) and King County (one of the plaintiffs in the case). The State pays half of his salary and King County pays the other half. Seattle does not pay any part of the judge’s salary; you are in error.
If the judge had recused himself, there would have been no one to hear the case because all the other judges are in the same boat… they also draw salaries from the state and county.
By your logic, no court in the State of Washington could hear this case, because all of the judges and justices work for one of the parties.
So who should hear the case, Wooja? Should we let a court in Oregon or Idaho interpret our Constitution for us?
You clearly don’t understand how our judicial system works. King County’s executive branch brings cases all the time in King County Superior Court. When someone is accused of a crime in King County, the person prosecuting them, the person serving as the trier of fact (the judge), and the jurors are all paid by the taxpayers. Even the person defending the accused may be paid by the taxpayers, if the accused cannot afford their own attorney and end up being represented by a public defender. That’s how the judiciary works. The courts are a separate branch of government, separate from the executive and legislative branches.
There is no conflict of interest here. The judge did not need to recuse himself.
The only argument that matters here is that the people voted and now it sees their votes do not count. This is why people do not trust the government, and why many feel it’s a waste of their time to vote.
The Constitution is the supreme law of the land and no law may be passed that violates it, period. This is bedrock American jurisprudence. In the case of I‑976, the question voters were asked to decide was fraudulent. It is bad enough that the measure itself contains constitutional defects — to have the ballot title misrepresent the measure is arguably even worse, because that’s the only language voters see on their ballots. People were asked if they wanted “thirty dollar car tabs”, when in fact the initiative would not deliver this, even if implemented at enormous cost to our communities. I agree that it’s very problematic for our democracy when such cons are perpetrated against the voters.