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.

Wednesday, March 11th, 2020

Judge Marshall Ferguson keeps I‑976 on ice while Tim Eyman pretends it’s taking effect

Today, there was a fresh devel­op­ment in the legal chal­lenge against Tim Eyman’s incred­i­bly destruc­tive Ini­tia­tive 976, a mea­sure spon­sored by Eyman that seeks to wipe out bil­lions of dol­lars in trans­porta­tion fund­ing at the state, region­al, and local lev­els in Wash­ing­ton State by elim­i­nat­ing vehi­cle fees and auto sales tax­es.

King Coun­ty Supe­ri­or Court Judge Mar­shall 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 8 and 9. Sec­tion 8 con­cerns bonds and Sec­tion 9 attempts to tie any future motor vehi­cle excise tax to Kel­ley Blue Book val­ues.

Judge Fer­gu­son ruled that the plain­tiffs — King Coun­ty, the City of Seat­tle, and a statewide coali­tion rep­re­sent­ed by Paci­fi­ca Law Group — had proved beyond a rea­son­able doubt that Sec­tions 8 and 9 were uncon­sti­tu­tion­al. He there­fore grant­ed, in part, their motion for sum­ma­ry judg­ment. At the same time, he par­tial­ly grant­ed the defen­dants’ motion for sum­ma­ry judg­ment as well.

(The defen­dants are the State of Wash­ing­ton, Tim Eyman and his pals, who inter­vened, and Pierce Coun­ty, which also inter­vened.)

The judge decreed that the pre­lim­i­nary injunc­tion that he issued last Novem­ber should be vacat­ed because he found most of the ini­tia­tive to be con­sti­tu­tion­al, and the uncon­sti­tu­tion­al parts sev­er­able from the rest of the ini­tia­tive.

How­ev­er, Judge Fer­gu­son decid­ed to give the plain­tiffs a chance to per­suade him that the injunc­tion should remain in effect.

Con­se­quent­ly, he sus­pend­ed the por­tion of his order vacat­ing the injunc­tion until at least March 27th, when he has sched­uled a hear­ing on a pos­si­ble motion for rein­state­ment, which the plain­tiffs will undoubt­ed­ly bring.

Giv­en that the Kel­ley Blue Book pro­vi­sion was men­tioned in the bal­lot title, Sec­tion 9 arguably can­not be sev­ered from the rest of the ini­tia­tive, and the entire thing ought to be struck down on the basis of the plain­tiffs’ Sec­tion 9 argu­ment. This is an issue that will come up dur­ing the inevitable appeal.

If you find this all con­fus­ing, well, we don’t blame you. It *is* con­fus­ing.

Here’s a quick recap of how we got here:

So what we’ve got right now is a stay on the removal of a stay.

Plain­tiffs win, defen­dants win, plain­tiffs win, defen­dants win, plain­tiffs win…

Isn’t lit­i­ga­tion fun?

Tim Eyman, who remains furi­ous that I‑976 has not been imple­ment­ed, sent out an email tri­umphant­ly — and false­ly — pro­claim­ing that I‑976 had tak­en effect.

“Huge vic­to­ry, your emails did it, judge lift­ed injunc­tion today, I‑976 takes effect now!” Eyman wrote in an email to his fol­low­ers.

By “your emails did it,” Eyman was refer­ring to an extreme­ly inap­pro­pri­ate cam­paign of harass­ment he has been sub­ject­ing Judge Mar­shall Fer­gu­son to.

Telling his fol­low­ers to send nasty­grams to peo­ple who oppose him is a trade­mark Eyman maneu­ver. Eyman will typ­i­cal­ly dis­trib­ute both their per­son­al + work email address­es and their mobile tele­phone num­bers as part of his cam­paigns of harass­ment. Because Eyman’s email archive is pub­lic, he is effec­tive­ly dis­trib­ut­ing pri­vate con­tact infor­ma­tion pub­licly, some­thing NPI’s Code of Ethics for­bids.

Eyman is, as men­tioned, a par­ty to the case because he inter­vened.

Eyman’s ex parte lob­by­ing of the judge is com­plete­ly inap­pro­pri­ate and Judge Fer­gu­son ought to admon­ish or sanc­tion him imme­di­ate­ly.

It is point­less to cut a ser­i­al offend­er like Eyman any slack what­so­ev­er because he is extreme­ly arro­gant and unin­ter­est­ed in vol­un­tar­i­ly chang­ing his bad behav­iors. Harsh con­se­quences are the only thing that seems to have an effect on Eyman.

After Eyman sent that email, we released a state­ment explain­ing that Eyman was in fact lying and that I‑976 had not tak­en effect. It remains on ice, for now.

The judge’s order makes this abun­dant­ly clear:

The injunc­tion against imple­men­ta­tion of I‑976 is lift­ed, except as to the sev­ered Sec­tions 8 and 9, which shall not be imple­ment­ed because they are uncon­sti­tu­tion­al.

The vaca­tion of the order and the lift­ing of the injunc­tion are sus­pend­ed, how­ev­er, as explained fur­ther below.

[…]

Plain­tiffs con­tend on recon­sid­er­a­tion that they are still enti­tled to a pre­lim­i­nary injunc­tion and they request that the Court either main­tain the pre­lim­i­nary injunc­tion to pre­serve the sta­tus quo or issue a stay to allow plain­tiffs to obtain an appel­late injunc­tion. Plain­tiffs’ request, made in a respon­sive mem­o­ran­dum, is not prop­er­ly before the Court.

Pur­suant to RCW 7.40.150, the Court pos­sess­es dis­cre­tion to allow a motion to rein­state an injunc­tion and to set a time for hear­ing the motion. In order to pro­vide a hear­ing for Plain­tiffs’ above-ref­er­enced requests, the Court grants to Plain­tiffs leave to bring a rein­state­ment motion, which may be not­ed for a hear­ing before the under­signed Judge to occur on Fri­day, March 27th, 2020 at 1:30 PM.

Until then, the parts of this Order vacat­ing and mod­i­fy­ing the Pre­lim­i­nary Injunc­tion are sus­pend­ed. 

Empha­sis is mine.

Read the entire rul­ing:

Judge Fer­gu­son’s order on motions for recon­sid­er­a­tion in I‑976 legal chal­lenge

Tim Eyman is so des­per­ate for I‑976 to be imple­ment­ed that he appar­ent­ly could­n’t help him­self from pre­tend­ing that it has tak­en effect, and glee­ful­ly pro­claim­ing as such. The truth has nev­er been impor­tant to him.

But in the real world, I‑976 has not tak­en effect, and the Depart­ment of Licens­ing con­tin­ues to col­lect the tax­es and fees that I‑976 attempt­ed to repeal.

In the event Judge Fer­gu­son choos­es to lift the pre­lim­i­nary injunc­tion on or after March 27th, the plain­tiffs have the option of fil­ing an appeal with the Wash­ing­ton State Supreme Court. They could also file such a request before then, as the judge’s order acknowl­edges (“Noth­ing in this Order pro­hibits Plain­tiffs from peti­tion­ing an appel­late court for injunc­tive relief.”)

It is essen­tial the pre­lim­i­nary injunc­tion remain in place while the I‑976 case is lit­i­gat­ed so that in the event it is found uncon­sti­tu­tion­al, the plain­tiffs and the peo­ple of Wash­ing­ton State are not harmed by its imple­men­ta­tion.

Sav­ing the injunc­tion will thus be the plain­tiffs’ most impor­tant pri­or­i­ty in the short term. Judge Fer­gu­son has already unequiv­o­cal­ly stat­ed that they have proved that imple­men­ta­tion of the mea­sure would in fact be very destruc­tive.

The Supreme Court will have the final word on I‑976’s con­sti­tu­tion­al­i­ty. The Court often dis­agrees with the deci­sions reached by Supe­ri­or Court judges, so Judge Fer­gu­son’s view of the issues in this case could soon be super­seded.

It is nev­er­the­less note­wor­thy that even though Judge Fer­gu­son found most of the ini­tia­tive to be con­sti­tu­tion­al, he did agree with the plain­tiffs that some parts of it weren’t. Because of this lat­est rul­ing, we can now say that Tim Eyman’s I‑976 has been struck down in part as uncon­sti­tu­tion­al. 

Assum­ing the Supreme Court finds at least some part of the ini­tia­tive uncon­sti­tu­tion­al when the case lands there, I‑976 will become the ninth Eyman ini­tia­tive that Eyman got past vot­ers to suf­fer from a con­sti­tu­tion­al defect, after I‑695, I‑722, I‑747, I‑776, I‑960/I‑1053/I‑1185, and I‑1366.

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