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.