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.