NPI's Cascadia Advocate

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.

Friday, March 27th, 2020

Another loss for Tim Eyman: Judge rules injunction against I‑976 shall remain in place

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.

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8 Comments

  1. 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.

    # by Robert Dutrow :: March 31st, 2020 at 6:13 PM
    • 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.

      # by Andrew Villeneuve :: April 1st, 2020 at 9:53 AM
      • 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.

        # by Bryon Harper :: April 3rd, 2020 at 8:45 AM
        • 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.

          # by Andrew Villeneuve :: April 5th, 2020 at 4:51 PM
  2. 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.

    # by Wooja Blomi :: April 2nd, 2020 at 9:44 AM
    • 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.

      # by Andrew Villeneuve :: April 2nd, 2020 at 11:12 AM
  3. 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.

    # by Alexis Hancock :: April 16th, 2020 at 11:20 AM
    • 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.

      # by Andrew Villeneuve :: April 16th, 2020 at 8:00 PM