Attorney General Bob Ferguson
Attorney General Bob Ferguson speaks at a press conference announcing he's proposing legislation to abolish executions (Photo: Andrew Villeneuve/NPI)

Though this morn­ing’s Wash­ing­ton State Supreme Court deci­sion strik­ing down Ini­tia­tive 976 in its entire­ty was cer­tain­ly a major defeat for spon­sor Tim Eyman, it was also a loss for Attor­ney Gen­er­al Bob Fer­gu­son’s office, because the office was required by law to defend the ini­tia­tive after it was sub­ject­ed to a legal challenge.

Rather than out­sourc­ing the work of defend­ing the ini­tia­tive to a pri­vate law firm, as Eyman had want­ed, Fer­gu­son kept it in-house. In accor­dance with agency pro­ce­dures, Fer­gu­son instruct­ed that a fire­wall be set up to sep­a­rate the team respon­si­ble for defend­ing I‑976 and the team work­ing to hold Eyman account­able for major vio­la­tions of Wash­ing­ton’s pub­lic dis­clo­sure law in the high pro­file cam­paign enforce­ment suit filed by Fer­gu­son in March of 2017.

That, of course, was­n’t good enough for Eyman. The dis­hon­est ini­tia­tive pro­mot­er imme­di­ate­ly began accus­ing Fer­gu­son of “sab­o­tag­ing” I‑976’s legal defense, and has kept that par­tic­u­lar fire burn­ing, at least with his fans, for near­ly a year now.

The real­i­ty, how­ev­er, is that Fer­gu­son’s office was set up for fail­ure, because Tim Eyman did­n’t give them any­thing to hang their hats on.

I‑976 was a bad­ly writ­ten ini­tia­tive, not just flawed in one or two ways, but chock full of con­sti­tu­tion­al defects. The Court did not dis­cuss all of the defects in its deci­sion because there was no need; the jus­tices were in agree­ment that the mea­sure was uncon­sti­tu­tion­al on Arti­cle II, Sec­tion 19 grounds. How­ev­er, the plain­tiffs laid out all of the alleged defects in their court briefs.

I can’t see how any lawyer or law firm in the state, no mat­ter how bril­liant, could have saved I‑976 from the wreck­ing ball. It was a piece of junk at its incep­tion and it’s now been put in the scrap heap where it belongs. I’m guess­ing Bob Fer­gu­son was think­ing sim­i­lar thoughts when he approved the state­ment below.

I’m proud of my legal team, who worked long hours to defend the will of the vot­ers, argu­ing suc­cess­ful­ly at the tri­al court that Ini­tia­tive 976 was constitutional.

To be can­did, we knew this would be a dif­fi­cult case.

I‑976 is the lat­est in a long list of Eyman tax ini­tia­tives struck down by the courts. In fact, Tim Eyman has nev­er writ­ten a suc­cess­ful tax ini­tia­tive that passed legal muster. Every one of his tax ini­tia­tives has been thrown out or par­tial­ly blocked by the courts.

Tim Eyman will, of course, do what he has done through­out this case — blame every­one but him­self. He will again blame my out­stand­ing legal team, even though the Supreme Court allowed inter­ven­ers to present Eyman’s arguments.

He will again blame my office for lan­guage in the bal­lot title that he specif­i­cal­ly request­ed to be includ­ed in the title, and that was pulled word-for-word from his ini­tia­tive. He should look in the mir­ror and apol­o­gize to vot­ers for once again send­ing them an ini­tia­tive that failed to sur­vive a legal chal­lenge and deliv­er on its promises.

I agree with every­thing AG Fer­gu­son says above, except his com­ment about I‑976 being found con­sti­tu­tion­al at the tri­al court lev­el. It’s true that Judge Mar­shall Fer­gu­son ini­tial­ly upheld most of the pro­vi­sions of the ini­tia­tive. How­ev­er, Judge Fer­gu­son lat­er went on to strike down some of the pro­vi­sions as uncon­sti­tu­tion­al. It end­ed up being a split deci­sion; it did­n’t go entire­ly the AGO’s way.

Tri­al court rul­ings are not bind­ing on the State Supreme Court, and Attor­ney Gen­er­al Bob Fer­gu­son knows that. The Supreme Court over­turns Supe­ri­or Court judges reg­u­lar­ly, espe­cial­ly in cas­es per­tain­ing to ini­tia­tives and recalls. (Take the recall against May­or Jen­ny Durkan as an example.)

Fer­gu­son’s team had what I con­sid­ered to be an unpleas­ant and impos­si­ble task: Con­vince Wash­ing­ton’s nine extreme­ly thought­ful State Supreme Court jus­tices that I‑976 did­n’t vio­late the Con­sti­tu­tion when it clear­ly did.

Not sur­pris­ing­ly, they could­n’t do it.

At one point in the lead opin­ion, Jus­tice Steven Gon­za­lez remarked that the jus­tices were “unper­suad­ed by the State’s argu­ment” that the I‑976 bal­lot title (which I’ve pre­vi­ous­ly ana­lyzed as a blaz­ing dump­ster fire) was not misleading.

“The bal­lot state­ment of an ini­tia­tive con­cerns the effect of the ini­tia­tive,” Gon­za­lez wrote. “It is not the place for tru­isms about leg­isla­tive power.”

Reflect­ing on the lan­guage that false­ly stat­ed that vot­er approved charges would be exempt­ed from vehi­cle fee roll­backs, Gon­za­lez added:

“We hold that the ini­tia­tive vio­lates the sub­ject-in-title rule because it is decep­tive and mis­lead­ing since the aver­age informed lay vot­er would con­clude vot­er approved tax­es – such as those used to fund local and region­al trans­porta­tion projects across our state – would remain.”

No cred­i­ble analy­sis of the I‑976 bal­lot title can con­clude it is any­thing but mis­lead­ing and decep­tive. It is telling that the lead opin­ion was signed by eight of the nine jus­tices. (A ninth jus­tice, Bar­bara Mad­sen, dis­agreed that the bal­lot title was defec­tive, but agreed that the mea­sure had more than one subject.)

Tim Eyman has spent much of the day assert­ing that “vot­ers were not con­fused”. But he does not speak for the vot­ers. In fact, just two months ago, Wash­ing­ton vot­ers told Eyman to get lost and end­ed his can­di­da­cy for governor.

Regard­less of what the degree of con­fu­sion among vot­ers may have been, peo­ple were lied to by Eyman, both direct­ly and through I‑976’s text and bal­lot title.

And those lies had an effect on the outcome.

As John Ker­ry mem­o­rably remarked in one of his debates with George W. Bush in 2004, it is pos­si­ble to be cer­tain and still be wrong. The I‑976 bal­lot title makes it sound like I‑976 is a pro­pos­al that would have the effect of giv­ing every­one vehi­cle fees no high­er than thir­ty dol­lars with the excep­tion of any “vot­er approved charges”. Nei­ther of those state­ments is true.

The I‑976 bal­lot title also com­plete­ly neglects to men­tion any of the con­se­quences that would result from imple­ment­ing such a scheme.

We can­not know how many vot­ers were duped by Eyman’s fab­ri­ca­tions. What we do know is that Arti­cle II, Sec­tion 19 of the Con­sti­tu­tion requires that bal­lot titles and bill titles express­ly refer to their sub­jects. And I‑976’s doesn’t.

Accord­ing­ly, the ini­tia­tive can­not stand.

Today was a vic­to­ry for jus­tice, the Con­sti­tu­tion, and Wash­ing­ton’s future. While Bob Fer­gu­son’s team did­n’t pre­vail, they can take com­fort in the knowl­edge that they tried to mount a zeal­ous defense despite hav­ing very lit­tle to work with.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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