Tim Eyman wants to contest initiative filing fee increase, but has no grounds for doing so

A few days ago, Wash­ing­ton Sec­re­tary of State Steve Hobbs imple­ment­ed new rules for fil­ing ini­tia­tives and ref­er­en­da in the Ever­green State which raised the cost of fil­ing ini­tia­tives from five dol­lars to $156, in a long over­due move that I tes­ti­fied in sup­port of back in Feb­ru­ary at an admin­is­tra­tive rule­mak­ing hearing.

Right wing activist Tim Eyman, who used to be in the busi­ness of qual­i­fy­ing ini­tia­tives to the bal­lot every year, quick­ly took notice… and as our team antic­i­pat­ed, he isn’t hap­py about the increase.

Eyman fired off a let­ter to Sec­re­tary Hobbs telling him that he would be show­ing up in Olympia to file ini­tia­tives to the 2025 Wash­ing­ton State Leg­is­la­ture and that he expect­ed to pay just five dol­lars. He sub­se­quent­ly cir­cu­lat­ed a copy of his “demand let­ter” to his list of fol­low­ers and the press. Here it is:

Dear Sec­re­tary Hobbs:

Tomor­row (Wed, March 13) is the first day for cit­i­zens to file an ini­tia­tive to the legislature.

I will be fil­ing sev­er­al ini­tia­tives on var­i­ous top­ics tomor­row. How­ev­er, this morn­ing a friend for­ward­ed me a news sto­ry report­ing that your office uni­lat­er­al­ly raised the ini­tia­tive fil­ing fee from $5 to $156 start­ing tomorrow.

You have no author­i­ty to uni­lat­er­al­ly increase ini­tia­tive fil­ing fees.

The chap­ter gov­ern­ing state ini­tia­tive and ref­er­en­dum is chap­ter 29A.72 RCW.

The leg­is­la­ture del­e­gat­ed to your office the author­i­ty to adopt rules estab­lish­ing rea­son­able fees for specif­i­cal­ly iden­ti­fied chap­ters and Titles, but chap­ter 29A.72 RCW gov­ern­ing ini­tia­tives is not list­ed.

If the leg­is­la­ture had intend­ed to grant your office uni­lat­er­al author­i­ty to raise fil­ing fees for ini­tia­tives, it could have done so but did not.

This state­ment of fact is bol­stered by instances where the leg­is­la­ture con­sid­ered increas­ing those fees and decid­ed to keep them the same.

Dur­ing the 2007 leg­isla­tive ses­sion, Sen­ate Bill 5392 was intro­duced. A pub­lic hear­ing was con­duct­ed on Jan­u­ary 30 and I tes­ti­fied on it. The bill was not passed into law – the leg­is­la­ture decid­ed not to increase the fee.

Dur­ing the 2010 leg­isla­tive ses­sion, Sen­ate Bill 6665 was intro­duced. A pub­lic hear­ing was con­duct­ed on Jan­u­ary 21. I tes­ti­fied on that one too. The bill was not passed into law – the leg­is­la­ture decid­ed not to increase the fee.

The Leg­is­la­ture has specif­i­cal­ly retained author­i­ty regard­ing the fil­ing fee amount and has repeat­ed­ly decid­ed the amount should remain the same.

You have no author­i­ty to uni­lat­er­al­ly increase fil­ing fees for initiatives.

There­fore, for my ini­tia­tives that’ll be filed tomor­row morn­ing, your office must accept them with the leg­is­la­ture-defined amount of $5.00 per initiative.

If that does not hap­pen, you will force me to file a law­suit against you and your office.

Please respond by 5:00 pm today because time is of the essence.

Tim Eyman

Empha­sis is Eyman’s.

Hobbs’ office sen­si­bly did not both­er respond­ing to the above. When Eyman showed up, he was required to pay the $156 fee for the two ini­tia­tives that he wished to file, and did so, as con­firmed by The Wash­ing­ton State Stan­dard­’s Jer­ry Corn­field in an arti­cle pub­lished today about the fil­ing fee increase.

Eyman’s insis­tence that Hobbs has “no author­i­ty” to increase fil­ing fees for ini­tia­tives when state law clear­ly states that he does is amus­ing — and telling.

You might think that some­one who has been try­ing to change state law for decades and has spon­sored dozens of ini­tia­tives seek­ing to do so would have acquired a basic under­stand­ing of it. But you would be mistaken.

Not only is Tim Eyman bad at writ­ing law, he’s bad at read­ing it, too.

Here are the rel­e­vant statutes. First, RCW 29A.72.010:

Filing proposed measures with secretary of state.

If any legal vot­er of the state, either indi­vid­u­al­ly or on behalf of an orga­ni­za­tion, desires to peti­tion the leg­is­la­ture to enact a pro­posed mea­sure, or sub­mit a pro­posed ini­tia­tive mea­sure to the peo­ple, or order that a ref­er­en­dum of all or part of any act, bill, or law, passed by the leg­is­la­ture be sub­mit­ted to the peo­ple, he or she shall file with the sec­re­tary of state:

(1) A leg­i­ble copy of the mea­sure pro­posed, or the act or part of such act on which a ref­er­en­dum is desired;
(2) A signed affi­davit, or elec­tron­ic sub­mis­sion, that the spon­sor is a reg­is­tered vot­er; and
(3) A fil­ing fee pre­scribed under RCW 43.07.120.

In that last sub­sec­tion, you can see the Sec­re­tary of State is autho­rized to charge a fil­ing fee, pre­scribed under a dif­fer­ent RCW. Let’s look at that one:

Fees — Rules.

(1) The sec­re­tary of state must estab­lish by rule and col­lect the fees in this subsection:
(a) For a copy of any law, res­o­lu­tion, record, or oth­er doc­u­ment or paper on file in the sec­re­tary’s office;
(b) For any cer­tifi­cate under seal;
(c) For fil­ing and record­ing trademark;
(d) For each deed or patent of land issued by the governor;
(e) For record­ing mis­cel­la­neous records, papers, or oth­er documents.
(2) The sec­re­tary of state may adopt rules under chap­ter 34.05 RCW estab­lish­ing rea­son­able fees for the fol­low­ing ser­vices ren­dered under chap­ter 23.95 RCW, Title 23B RCW, chap­ter 18.100, 19.09, 19.77, 23.86, 23.90, 24.03A, 24.06, 24.12, 24.20, 24.24, 24.28, 24.36, *25.04, 25.15, 25.10, 25.05, or 26.60 RCW:
(a) Any ser­vice ren­dered in-per­son at the sec­re­tary of state’s office;
(b) Any expe­dit­ed service;
(c) The elec­tron­ic or fac­sim­i­le trans­mit­tal of infor­ma­tion from cor­po­ra­tion records or copies of documents;
(d) The pro­vid­ing of infor­ma­tion by micro­graph­ic or oth­er reduced-for­mat compilation;
(e) The han­dling of checks, drafts, or cred­it or deb­it cards upon adop­tion of rules autho­riz­ing their use for which suf­fi­cient funds are not on deposit; and
(f) Spe­cial search charges.
(3) To facil­i­tate the col­lec­tion of fees, the sec­re­tary of state may estab­lish accounts for deposits by per­sons who may fre­quent­ly be assessed such fees to pay the fees as they are assessed. The sec­re­tary of state may make what­ev­er arrange­ments with those per­sons as may be nec­es­sary to car­ry out this section.
(4) The sec­re­tary of state may adopt rules for the use of cred­it or deb­it cards for pay­ment of fees.
(5) No mem­ber of the leg­is­la­ture, state offi­cer, jus­tice of the supreme court, judge of the court of appeals, or judge of the supe­ri­or court may be charged for any search rel­a­tive to mat­ters per­tain­ing to the duties of his or her office; nor may such offi­cial be charged for a cer­ti­fied copy of any law or res­o­lu­tion passed by the leg­is­la­ture rel­a­tive to his or her offi­cial duties, if such law has not been pub­lished as a state law.

This sec­tion has five sub­sec­tions. Eyman cit­ed the sec­ond subec­tion in his let­ter, writ­ing: “The leg­is­la­ture del­e­gat­ed to your office the author­i­ty to adopt rules estab­lish­ing rea­son­able fees for specif­i­cal­ly iden­ti­fied chap­ters and Titles, but chap­ter 29A.72 RCW gov­ern­ing ini­tia­tives is not listed.”

How­ev­er, it is irrel­e­vant that the sec­ond sub­sec­tion does­n’t men­tion chap­ter 29A.72 since the first sub­sec­tion is applic­a­ble. It says: “The sec­re­tary of state must estab­lish by rule and col­lect the fees in this sub­sec­tion… For a copy of any law, res­o­lu­tion, record, or oth­er doc­u­ment or paper on file in the sec­re­tary’s office” (a) as well as “For record­ing mis­cel­la­neous records, papers, or oth­er doc­u­ments” (e). This first sub­sec­tion encom­pass­es initiatives.

The Leg­is­la­ture explic­it­ly gave the Sec­re­tary of State the author­i­ty to set ini­tia­tive fil­ing fees when writ­ing chap­ter 29A.72 — that is why RCW 29A.72.010 refers to “A fil­ing fee pre­scribed under RCW 43.07.120.” This line would make absolute­ly no sense if RCW 43.07.120 then did­n’t apply to ini­tia­tives as Eyman argues.

You can see for your­self that there is no men­tion of five dol­lars in RCW 29A.72.010. That’s because the dol­lar amount for the ini­tia­tive fil­ing fee isn’t set in state law. It’s set by rule… a rule the Sec­re­tary of State has the author­i­ty to change, and did change after fol­low­ing the req­ui­site process for amend­ing WACs.

Eyman’s argu­ment that the “Leg­is­la­ture has specif­i­cal­ly retained author­i­ty regard­ing the fil­ing fee amount and has repeat­ed­ly decid­ed the amount should remain the same” is laugh­ably false. The oppo­site is actu­al­ly true: when the Leg­is­la­ture did not pass the bills that Sen­a­tor Jeanne Kohl-Welles spon­sored to increase the fil­ing fee in 2007 and 2010, it left the author­i­ty to set the fee with the Sec­re­tary of State. Kohl-Welles had pro­posed amend­ing RCW 29A.72.010 to spec­i­fy a par­tic­u­lar dol­lar amount. Had either of her bills passed, then the fil­ing fee would have become an amount fixed in law, unchange­able by Hobbs.

Here’s the rel­e­vant bit from Kohl-Welles’ first bill, con­sid­ered in 2007:

Sec. 2. RCW 29A.72.010 and 2003 c 111 s 1802 are each amend­ed to read as follows:

If any legal vot­er of the state, either indi­vid­u­al­ly or on behalf of an orga­ni­za­tion, desires to peti­tion the leg­is­la­ture to enact a pro­posed mea­sure, or sub­mit a pro­posed ini­tia­tive mea­sure to th peo­ple, or order that a ref­er­en­dum of all or part of any act, bill, or law, passed by the leg­is­la­ture be sub­mit­ted to the peo­ple, he or she shall file with the sec­re­tary of state a leg­i­ble copy of the mea­sure pro­posed, or the act or part of such act on which a ref­er­en­dum is desired, accom­pa­nied by an affi­davit that the spon­sor is a legal vot­er and a fil­ing fee ((pre­scribed under RCW 43.07.120)) of one hun­dred dol­lars. The fil­ing fee shall be refund­ed in full upon the mea­sure being cer­ti­fied by the sec­re­tary of state for the gen­er­al elec­tion bal­lot.

You can see that “pre­scribed under RCW 43.07.120” would have been delet­ed, and a spe­cif­ic dol­lar amount, one hun­dred dol­lars, would have been added. That dol­lar amount would then not have been admin­is­tra­tive­ly adjustable.

But since nei­ther of Kohl-Welles’ bills passed, Sec­re­tary Hobbs was able to not only update the fee, but pro­vide for its con­tin­u­al upward adjust­ment in the future through a change to the Wash­ing­ton Admin­is­tra­tive Code.

Tim Eyman like­ly nev­er con­sid­ered that his oppo­si­tion to Sen­a­tor Kohl-Welles’ leg­is­la­tion would one day set the stage for an even bet­ter change to the fil­ing fee that will pre­vent the fee from going out of date again.

Because Hobbs fol­lowed the law in mak­ing this change to the fee, Eyman’s legal chal­lenge will go nowhere. He and oth­ers will sim­ply have to pay the high­er fee when­ev­er they want to file ini­tia­tives in the future.

As I told The Stan­dard­’s Jer­ry Corn­field, this is fair and rea­son­able:

Every time an ini­tia­tive is filed, work must be per­formed by the Sec­re­tary of State’s elec­tions staff, the Code Revis­er’s staff, and the Attor­ney Gen­er­al’s office. There are costs involved with that work. Elec­tions are a pub­lic ser­vice just like high­ways, tran­sit, parks, libraries, polic­ing, and fire pro­tec­tion — they aren’t free. The updat­ed fil­ing fee oblig­ates spon­sors to pro­vide the same lev­el of finan­cial sup­port for their ini­tia­tive fil­ings that spon­sors in the 1910s had to pro­vide, which is fair and rea­son­able and respect­ful of the pub­lic ser­vants who work for we the peo­ple.

More ini­tia­tive reforms are need­ed to ensure that our sacred pow­ers of ini­tia­tive and ref­er­en­dum are pro­tect­ed from bad actors. We have more good ideas in the pipeline and are look­ing for­ward to bring­ing them to fruition. Our goal is to ensure that the decep­tion and abuse of the past can­not occur in the future.