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:

• 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:

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.