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, April 29th, 2020

Tim Eyman’s I‑976 will remain frozen while State Supreme Court considers challenge to it

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.
Chief Justice

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.

Gandalf: I come back to you now... at the turn of the tide

Gan­dalf the White speaks to Fel­low­ship mem­bers Aragorn, Lego­las, and Gim­li in Fan­gorn For­est (Film copy­right 2002 by New Line Cinema)

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.

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One Comment

  1. I don’t need and want a tax cut. I want well fund­ed tran­sit ser­vice that I can rely on… even dur­ing a pub­lic health crisis.

    I hope the Supreme Court dis­cards this uncon­sti­tu­tion­al absurdity. 

    # by Ofelia Shackleton :: May 1st, 2020 at 11:11 AM