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:
- In late November, a lawsuit was filed contending Initiative 976 was unconstitutional; it ended up in Judge Ferguson’s court.
- Judge Ferguson decided that the plaintiffs were likely to prevail on their claims that I‑976 was unconstitutional, and ordered I‑976 paused indefinitely by issuing a preliminary injunction.
- In December, several people and organizations were granted permission to intervene in the case, as was Pierce County.
- In February, Judge Ferguson heard oral argument for and against the measure’s constitutionality, following the submission of written briefs.
- Judge Ferguson then ruled that most of the initiative was constitutional, but held off on passing judgment on two sections — 8 and 9. The judge granted the parties leave to submit more briefs and conduct discovery if they wished. The parties passed on the discovery opportunity.
- Judge Ferguson has now ruled Sections 8 and 9 unconstitutional (giving the plaintiffs a victory) but vacated the preliminary injunction order that he issued in November (giving the defendants a victory) but then suspended that vacation (giving the plaintiffs a victory).
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.