Tim Eyman’s incredibly destructive Initiative 976 — a statewide ballot measure designed by Eyman to devastate funding for Washington State’s mutlimodal transportation infrastructure — will remain on ice while a legal challenge against it moves through its final phase, the Supreme Court ruled unanimously today.
A panel of justices concluded that an injunction barring Initiative 976’s implementation should remain in effect for the time being, until the Supreme Court has decided whether I‑976 is constitutional or not.
In a brief order, the Court held:
Department II of the Court, composed of Chief Justice Stephens and Justices Madsen, González, Yu and Whitener, considered at its April 28th, 2020, Motion Calendar whether this case should be retained for decision by the Supreme Court or transferred to the Court of Appeals. The Department unanimously agreed that the following order be entered.
IT IS ORDERED: That this Court will retain this case for hearing and decision. The request for accelerated review is granted. Accordingly, oral argument will be set in the spring term and briefs should be filed as follows. The responsive brief/opening brief on cross-appeal of Respondents should be served and filed by May 15th, 2020. The reply brief/responsive brief on cross-appeal of Appellants should be served and filed by May 29th, 2020. Any motions for permission to file an amicus brief, along with the proposed brief, should be served and filed by June 5th, 2020. The reply in support of cross-appeal of any Cross-Appellant should be served and filed by June 12th, 2020. Any answer to amici briefs should be served and filed by June 19, 2020. The King County Superior Court order vacating the preliminary injunction is stayed pending appeal, without the posting of a bond.
DATED at Olympia, Washington, this 29th day of April, 2020.
For the Court
Stephens, Debra J.
This ruling is a victory for the people of the State of Washington, as it keeps essential revenue for transportation services flowing during a grave public health crisis. With sales tax revenue having already dropped off a cliff, local governments sorely need funding from vehicle fees to remain intact so that they can provide Washingtonians with freedom of mobility.
It also clears away some uncertainty and confusion.
Now we know that I‑976 will assuredly not go into effect before the Supreme Court hands down a final decision on I‑976’s validity. If the Court finds that I‑976 is unconstitutional and no part of it can be saved, it will never go into effect.
If the Court finds the measure is constitutional — which would be a miscarriage of justice, because it’s not — then the measure would be implemented, at least partially, and the fiscal consequences would be immediate and devastating.
But even that bad outcome cannot come to pass for at least a few months as a result of today’s decision. We congratulate everyone involved in the I‑976 legal challenge on their success in keeping this extremely destructive initiative frozen in place until we get a final verdict on whether it violates our Constitution.
The coalition of plaintiffs includes the City of Seattle, King County, and other local governments and private organizations represented by NPI’s friends at Pacifica Law Group. They challenged I‑976 last November after it passed with the support of a submajority of Washington voters (23.44% of the state’s registered voters backed the measure, while the rest either did not vote or voted no).
Their challenge landed before King County Superior Court Judge Marshall Ferguson. A few days after getting the case, with hours to go until Thanksgiving, Ferguson granted a temporary injunction barring the measure from going into effect while he weighed the plaintiffs’ claims that I‑976 was unconstitutional.
The Supreme Court subsequently sustained Judge Ferguson’s decision after Attorney General Bob Ferguson appealed it. (The Attorney General is required by law to defend initiatives that are passed at the statewide ballot.)
In February, Judge Ferguson upheld most of the measure as constitutional, despite having indicated he had doubts about its constitutionality earlier, but he reserved judgment on two sections of the measure. He later found those sections to be unconstitutional, and declared them null and void.
In March (last month), Judge Ferguson decided to vacate the injunction he had granted in November barring implementation of I‑976, but he stayed his decision to allow plaintiffs to present arguments about why it should remain in effect.
Judge Ferguson ultimately decided to leave the injunction in place and allow the Supreme Court to answer the question of whether it should be lifted or retained. Now the Court has made its decision and the parties can focus on arguing over whether Initiative 976 violates the Washington State Constitution.
There is still important work to do to ensure that I‑976 is defeated. But the plaintiffs have come a long way and we’re so proud of them for sticking it out.
Today’s developments in the I‑976 legal challenge remind me of a scene from Peter Jackson’s adaption of JRR Tolkien’s The Two Towers.
In the scene, Gandalf the White is telling Aragorn, Gimli, and Legolas (who have all just been reunited in Fangorn Forest, to the astonishment of the latter three) that one stage of their journey is over, but another stage is just beginning.
That seems an apt characterization of the state of this case. I‑976 has been neutralized so far. But successfully defeating the initiative will require demonstrating to the Supreme Court that I‑976 is unconstitutional beyond a reasonable doubt.
If anyone can pull that off, it’s these plaintiffs and their counsel, ably represented by attorneys like David Hackett, Carolyn Boies, and the incomparable Paul Lawrence of Pacifica Law Group. Our best to them as the case moves forward.