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.