This morning, King County Superior Court Judge Marshall Ferguson granted a preliminary injunction blocking implementation of Initiative 976 while the court determines whether it violates the state Constitution.
The ruling comes after a flurry of legal filings over the past week and a hearing yesterday morning in front of Ferguson. The judge grilled both sides on the finer points of their case. The plaintiffs include the City of Seattle, King County, the Garfield County Transportation Authority, the Association of Washington Cities, and several transportation advocacy organizations from across the state. The state Attorney General’s office is defending I-976, as is its responsibility to defend all of the state’s laws.
In order to grant the injunction, the plaintiffs needed to prove three things:
- That they have a clear legal or equitable right: they are likely to succeed on the merits of its case (proving that I-976 is unconstitutional), and the balance of equities tip in its favor.
- That they have a well-grounded fear of immediate invasion of that right;
- That they will suffer actual and substantial injury.
All three of these requirements were argued back and forth in court yesterday. The plaintiffs argued five different reasons why they believe I-976 is unconstitutional, with varying degrees of success. The strongest argument they put forward was that the initiative violates the “subject in title” requirement of Article II, Section 19 of the State Constitution, because the ballot title said that I-976 would limit motor-vehicle license charges to $30, except for “voter approved” charges — but didn’t clarify whether that including existing ones already approved by voters (it doesn’t — they are all repealed). See here for a full explanation of the other arguments they made.
In the end, this is the only one that Ferguson cited in his ruling this morning — though he only needed one. He did point out that he was not ruling definitively on the point, and there are plausible arguments that I-976 doesn’t violate the subject-in-title rule, all of which will be debated at length as the case moves forward. But for the purposes of a preliminary injunction, the plaintiffs met the requirement of showing that they will likely succeed on the merits (at least on that point).
The fact that he didn’t mention any of the other arguments is difficult to interpret. Ferguson’s questioning and comments at the hearing yesterday made it clear that he was less sympathetic to them, and he may simply be reserving judgment for the time being. But basing the injunction solely on a violation of the subject-in-title rule (which is highly subject to interpretation by judges) makes his ruling easier to overturn by an appeals court if the state chooses to appeal.
The question of immediate harm also was argued at length in the hearing yesterday. The state argued that governments have other sources of money to choose from, and whether they choose to de-fund transportation or shift funds from other uses is a policy decision they are free to make, thus there is no immediate harm; they also pointed out that Seattle, WSDOT, and other jurisdictions have reserve funds they can draw on — at least enough to get them through the next few months while the case plays out at the trial court level (though appeals could take months, if not years). On this point the plaintiffs made it harder on themselves by stumbling around in their description of the immediate effects of the implementation of I-976. They hastily filed an additional declaration late yesterday afternoon to bolster their case for immediate harms. And in the end, the judge bought it, citing the strongest points: King County Metro must make decisions on spring transit levels by December 9, and if tax collection is halted next week, there is no mechanism for going back later to collect those taxes if I-976 is ultimately found to be unconstitutional (whereas if I-976 is blocked now and tax collection continues, governments can issue tax refunds later if it’s found to be constitutional).
The judge also noted that the timeframe for ultimate resolution of this case is not just a few months: it’s ultimately headed for the state Supreme Court, which means it will probably be more than a year before there is a final ruling. Because of that, he found that the balance of equities tipped in favor of the plaintiffs: eventually, they would all be forced to cut services, even if it took some number of months for some of them to reach that point. Those cuts would create “long-term hardships endured by Washingtonians whose lifeline transportation services were cut for those many months or years, whose transportation work-hours were reduced or eliminated completely, and whose transportation projects were unfinished or never started” — harms which “could not be retroactively mitigated.”
With the preliminary injunction now in place, the judge requested both sides to confer and provide the court by December 5th with a proposed schedule for moving the case forward. In the meantime, the state must continue to collect motor vehicle excise taxes as it has been doing, as if I-976 had not passed.
Because I-976 is a Tim Eyman initiative, it of course comes with the Tim Eyman side-show. This was on full display yesterday, as Eyman disrupted the court proceedings at the end of yesterday’s hearing to try to argue his own points as to why his initiative is constitutional. Ferguson wasn’t having any of it, though, and quickly shut Eyman down, pointing out that he is not (currently) a party to the case and thus has no standing to address the court. (I was personally disappointed that Ferguson missed his opportunity to tell Eyman to “take a seat.”)
While Eyman has not officially moved to become a party in the lawsuit, he is supporting a group of taxpayers who have moved to intervene in the case by giving them a declaration in support of their effort. The taxpayers are asking for a change of venue, arguing that because King County is a party to the case, any King County Superior Court judge, whose paycheck comes from the county, has an inherent conflict of interest. This is a nonsensical argument; King County is a party in cases in King County Superior Court every day. And using that logic, there is no court in Washington State — including the state Supreme Court — that could hear this case, since the State of Washington is the defendant. The legal brief filed by the intervening taxpayers is a whirlwind of tortured logic and legal mumbo-jumbo.
After the hearing adjourned yesterday, Eyman picked a fight with the lawyers from the Attorney General’s office, arguing that they were doing a terrible job of defending his initiative and should turn over the defense to a third party because the Attorney General is prejudiced against the initiative. He continued his rant for several minutes before the media’s cameras in the hallway outside the courtroom.
I agree that the push to change venue is nonsensical. What should change is the defense. Looking at Bob Ferguson’s record, it is clear that he has made his office a partisan one. He is in a very public fight with Tim in an attempt to bar him from future activity in the public initiative process. There is a perception (I don’t have quotes to back this up but I think you would agree a perception exists at least) that Bob is an opponent of the initiative and agrees with our other elected officials to the devastating effects to the city’s budgets in Seattle especially but also across the state.
I think we are seeing a great theatrical performance. He is pretending to advocate for the initiative (look everyone I went straight to the Supreme Court!) and not actually defending it. Do just enough so it looks like he tried but not enough to prevail. They set this measure up to fail from the get go – it was Bob’s office that wrote the initiative’s subject. I’m sure he knew should the voters make the wrong choice that they way he worded the subject would give the strongest chance for the initiative to be struck down.
One of these days (hopefully soon), the voters will finally reach their tipping point with the tax burden and exercise their only means to protest – voting in different representation. I only hope that happens before they institute an income tax.
I don’t agree that the AG’s office has put up a half-hearted defense. It’s pretty telling that of the six or so arguments the plaintiffs made as to why I-976 is unconstitutional, Judge Ferguson only cited one of them — and then still cast shade on it. I sat in the courtroom during the entire hearing in front of Judge Ferguson, and I didn’t detect that the AG’s attorneys were doing anything less than a full-throated defense.
While the AG’s ofice wrote the ballot title, Eyman had the opportunity to challenge it before it went on the ballot. And he did initially, though after talking to the folks in the AG’s office he withdrew his challenge. Eyman availed himself fully of his opportunity to participate in the writing of the ballot title, and there is an argument to be made that he is as complicit as anyone else in its issues.
I-976 does, in fact, have several weaknesses, including but far from limited to the issues with the ballot title. That’s not the Attorney General’s fault. It’s easy to look at the results so far and conculde that they are phoning it in, but the facts don’t actually support that conclusion. They haven’t ceded any legal arguments yet, and they are still well-positioned to win their case in the end. The granting of a preliminary injunction doesn’t mean that the case will be a slam-dunk for the plaintiffs, and the text of Judge Ferguson’s ruling makes that clear: the plaintiffs proved just barely enough to get the preliminary injunction.
City attorneys, district attorneys, and attorneys general know that from time to time they will be called upon to defend laws that don’t align with their own political beliefs. That comes with the job. And the attorneys presenting the defense know that their own professional reputations are on the line. They don’t want to be perceived as doing a half-assed job on a case that they don’t personally believe in.
Eyman recently self-published several of his emails with the AG’s office and others related to the defense of I-976. His emails make it clear that he has a poor understanding of the applicable law, and he’s getting some questionable (and highly partisan) legal advice.
https://www.documentcloud.org/documents/6570555-Eyman-Emails.html
https://www.documentcloud.org/documents/6570554-More-Eyman-Emails.html
I can’t say, and won’t speculate, on how this case will eventually be decided. But the easy, simple narrative about how it’s being litigated is not true.