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.

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.