The effort to stop Tim Eyman’s incredibly destructive Initiative 976 from wreaking havoc upon Washington State’s communities is moving into its final phase.
Today, the Washington State Supreme Court is hearing oral argument in Garfield County Transportation Authority, et al. v. State of Washington, the case that asserts the initiative is unconstitutional on a number of fronts.
The justices have given each side a half hour to make their respective cases, for a total of one hour of oral argument. Normally, the justices would hear from the attorneys in person in the Temple of Justice, but due to COVID-19, arguments will be presented remotely, with all participants using videoconferencing technology.
Oral argument will begin at 1:30 PM.
The Court’s decision (when it is handed down) will be the final word on I‑976. King County Superior Court Judge Marshall Ferguson previously upheld I‑976 in part while ruling other provisions unconstitutional. The plaintiffs in the case (now the appellants) want the Supreme Court to overturn Ferguson’s ruling and nix I‑976 in its entirety. The defendants (now the respondents) would like the injunction lifted and the measure allowed to go into effect.
I‑976 is currently blocked from implementation by an injunction originally issued by Judge Ferguson late last year. The issuance of that injunction prevented I‑976 from going into effect on December 5th, 2019 as Tim Eyman had intended.
It is common for several months to pass in between when the Court hears oral argument in a case and when it reaches and releases a decision. Oral arguments are only presented to the Court after all the parties have had an opportunity to create a written record for the justices in the form of briefs.
As oral argument progresses, NPI’s Bobby Aiyer and I will update this post with our observations and reflections. We’ve already published a primer on the case over at NPI’s Permanent Defense which provides helpful context.
UPDATE, 1:35 PM (Andrew): We’re off and running. Our friend Matthew J. Segal of Pacifica Law Group is presenting first for the appellants, explaining how the I‑976 ballot title is false and misleading. He will be followed in a few minutes by co-counsel David Hackett, representing King County.
UPDATE, 1:38 PM (Bobby): Segal wasted no time diving into the issues of the case, focusing on logrolling and misrepresentation, with a particular emphasis on the misleading “except voter-approved charges” language in the ballot title. Segal pointed out there are “more provisions [having] to do with Sound Transit than thirty dollar tabs” despite Sound Transit not being mentioned in the ballot title.
UPDATE, 1:42 PM (Andrew): Good question from Justice Gonzalez for Segal about the issues raised by San Juan County’s amicus brief, pertaining to the portion of I‑976 that repeals funding for ferry districts.
UPDATE, 1:48 PM (Bobby): Just prior to Justice Gonzalez’s question, Chief Justice Stephens asked if actions on bonds are always a different subject than taxation or whether the specific language in I‑976 makes it an Article II, Section 19 violator. Segal answered that the specific language in Section 16 referring to “the RTA” and outlining dates for Sound Transit to perform certain actions are a different subject from limiting state-level vehicle fees to a catchy number.
UPDATE, 1:54 PM (Andrew): David Hackett of King County is now presenting, summarizing a second set of the plaintiff-appellants’ arguments. He’s focusing on the defects associated with the provision that tries to base future vehicle fees on Kelley Blue Book value, a provision that King County Superior Court Judge Marshall Ferguson already found to be unconstitutional. Hackett concluded his presentation by quoting from one of my posts about I‑976 (!) from late last year, in which I called the I‑976 ballot title a blazing dumpster fire.
UPDATE, 2 PM (Bobby): It’s the defendants’ turn to address the Court. Alan Copsey is presenting for the Attorney General’s office. He had barely said anything before he got interrupted, by Justice Steven Gonzalez, who expressed concern about the section of the ballot title that purports to exempt voter-approved vehicle fees from repeal by I‑976. Justice Gonzalez repeatedly asked Copsey to explain how I‑976 creates an exemption to which Copsey replied that the people can legislate for themselves and make new law at any point. Gonzalez points out that is always the case. Copsey also conceded that he is unaware of any prior voter-approved fees not impacted by I‑976 – a rather large concession.
UPDATE, 2:06 PM (Andrew): Copsey is gamely trying to mount a defense of I‑976 despite having pretty much nothing to work with. I‑976 has so many constitutional defects that the Attorney General’s office had to come up with some pretty ridiculous arguments in order to assert that the measure is constitutional. The justices seem very skeptical of Copsey’s arguments.
UPDATE, 2:14 PM (Bobby): Chief Justice Stephens recalled Copsey’s response to Justice Gonzalez’s question and asked what would be the case if the exception wasn’t in the title. Copsey points out there could hypothetically be a subject-in-title violation. But then Justice Gonzalez wondered if, if the title was worded to “include” the repeal of certain voter-approved fees, it would be more accurate.
UPDATE, 2:16 PM (Andrew): Justice McCloud just engaged in a back and forth with Copsey about the clarity of an earlier answer that he gave. At the end of the exchange, she referred back to a statement that Copsey made and remarked, “That could be a problem for you.” Copsey may well be thinking the same thing.