As expected, this afternoon the City of Seattle, King County, and several other parties jointly filed a lawsuit in King County Superior Court to challenge Initiative 976. With this, we get a first peek at their legal arguments.
Some caveats to begin: this is a complaint, not a full legal brief on the factual and legal issues, so it provides a high-level presentation of the case without wading through all the low-level details. Also, I-976 has a “severability” clause, meaning that if part of the bill is found to be illegal then the rest of the bill remains in force. Some of the lawsuit’s arguments attack specific parts, while others undermine the whole initiative, so it’s possible that the whole thing will survive, or the whole thing will be tossed by the courts, or pieces may survive.
Let’s look at the specific issues raised:
- Violating the “single subject rule.” Article II, Section 19 of the Washington State Constitution says: “No bill shall embrace more than one subject, and that shall be expressed in the title.” The first part of that sentence is known as the “single subject rule,” and the courts have interpreted it as requiring two things: “rational unity” between all of the components of a bill, and “rational unity” with the title of the bill. That means that there needs to be a coherent principle that connects every part of the bill to every other part, and each of those parts must also relate to the title of the bill. Without going into detail, the complaint alleges that the bill contains multiple subjects. It certainly is very broad and diverse, encompassing vehicle license fees, motor vehicle excise taxes, the official way to assess a vehicle’s value, and a few other topics; the city intends to argue that it is too broad and diverse.
- Violating the subject-in-title requirements. The second part of Article II, Section 19 requires that the subject of the bill must be expressed in its title. Here is the official ballot title for I-976:
“This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees; limit annual motor-vehicle-license fees to $30, except voter-approved charges; and base vehicle taxes on Kelley Blue Book value.”
The city argues that this is inaccurate, because I-976 repeals RCW 82.80.140, the law authorizing transportation benefit districts to impose voter-approved vehicle license fees. Without that law, there can be no “voter-approved charges” for a TBD, and thus the title misleads voters into believing that they will still have an opportunity to pass new car tab fees when in truth they will not.
- Repealing multiple statutes without disclosing them to voters. Article II, Section 37 of the state Constitution says: “No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.” This ensures that legislators (and voters, in the case of an initiative) get to read the full text and know what it is they are voting to repeal. I-976 repeals multiple existing laws without setting them out in full.
- Improperly setting out an amendment. This is a different kind of violation of Article II Section 37, in which the changes to an existing law are not accurately described. The text of the complaint filed today gives one specific example of this: I-976 simultaneously repeals RCW 81.104.160 (in Section 11), adds a reference to it (in Section 12), and amends it (in Section 13). Good luck figuring out what that means — and as an aside, this is an excellent example of the biggest problem with voter initiatives: badly written bills that skip the legislative process and go straight to a one-shot, pass-or-fail vote of the people.
- Violating provisions related to home rule and local control. Article I Section 19 of the constitution reads: “All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” But I-976 subjected local issues to a statewide vote, and overrode the results of local elections in which the voters decided to tax themselves. The complain also asserts that this is a violation of “due process, privileges and immunities.”
- Violating the separation of powers principle. The complaint asserts that I-976 encompasses non-legislative provisions and exceeds the scope of the initiative power. Article II Section 1 of the constitution reads: “the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.” This has been interpreted by the courts as limiting voter initiatives to the legislative powers granted also to the Legislature, but not to the non-legislative functions of the Legislative Branch or to any the powers of the Executive and Judiciary Branches. The complaint does not specify exactly what parts of I-976 exceed legislative powers, however.
- Impairing contractual obligations. Article I, Section 23 reads: “No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed.” However, the complaint points out that Sound Transit has issued bonds that obligate its share of the motor vehicle excise tax toward paying the debt service. since I-976 reduces or eliminates the MVET, and changes the way vehicles are valued for the purposes of the MVET, it impairs Sound Transit’s contractual obligations.
The asserted violation of the “single subject rule” is tenuous; Tim Eyman will likely argue that all the components of the bill relate to reducing taxation of vehicles and ensuring that the taxation level remains low. Courts often give initiative-writers the benefit of the doubt on this.
However, the violations of the subject-in-title rule, of Article II Section 37, and of impairing contractual obligations seem clear-cut, and would likely doom the entire initiative. The argument that I-976 violates home rule and local control is also strong, particularly to the extent that it invalidates past local elections. A voter initiative could potentially revoke future taxation authority granted by the state to local jurisdictions, but revoking past authority acted upon by local voters seems like a big stretch. At the least, we should expect the state Supreme Court to weigh in on that if a lower court affirms that provision of I-976 as legal.
In all, the legal arguments here are substantive and have a decent chance of getting I-976 thrown out — though it will take several months to work its way through the court system, even on an expedited schedule.
According to a spokesperson for the City Attorney’s Office, the consortium of parties filing the lawsuit will also file a motion for preliminary injunction either tomorrow or Friday. That will likely provide some additional details on the legal arguments, and start the ball rolling on preventing I-976 from decimating transportation budgets around the state while the legal process churns its way through. In order to get a preliminary injunction, the plaintiffs will need to show that the will suffer harm (easily done); the balance of harms is on their side vs. allowing I-976 to go into effect (complicated, since they will be arguing to continue to tax residents); and they are likely to succeed on the merits of the case. That last question will give us an early clue as to how the courts will view the legal foundations of I-976.
An interesting question yet to be answered is whether Attorney General Bob Ferguson will allow his office to defend the initiative. Once it is certified and becomes law, then the Attorney General’s office inherits a general duty to defend it, as it does with all of the state’s laws. However, if Ferguson believes it is unconstitutional, he may decide not to. In that case, Eyman may be defending it on his own — though Republicans in the Legislature may throw their hats in the ring too.
I hope Attorney General Bob Ferguson makes clear this law is unconstitutional and won’t defend it.
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