State Attorney General files emergency appeal of I-976 injunction

Yesterday afternoon, the state Attorney General’s office filed with the Washington State Supreme Court an emergency appeal of last week’s preliminary injunction blocking implementation of Initiative 976.

I-976, which was approved by Washington voters last month, is scheduled to take effect on Thursday. The Attorney General’s office, which is defending the initiative in court, has asked the Court to stay the injunction so that implementation may proceed.

The appeal treads familiar territory, recounting many of the points made by the state in arguing the case last week in front of King County Superior Court Judge Marshall Ferguson. It continues to argue that the case can be resolved in just a few months on an expedited schedule, and the cities and counties involved have sufficient financial reserves in place so that cutbacks to transportation services will not be required before final resolution.

The main issue on the merits, and the single one that Ferguson cited in his ruling, is whether the ballot title is misleading. The plaintiffs argued that it was because it said that “voter-approved charges” would be excepted but didn’t clarify that this only referred to future voter-approved charges, not ones already passed. But the state’s defense of the ballot title ironically does a capable job of making the case for the plaintiffs as to why it’s at least confusing, if not downright misleading:

While there is insufficient space in the ballot title to specify the
temporal limitations and other details associated with the voter-approval exception, the general reference to the exception would, in turn, prompt inquiring minds to read the initiative for further detail. See Pierce Cty. I, 150 Wn.2d at 436. Any person doing so would learn from Section 2 of the initiative that only charges approved by the voters after I-976’s effective date could be imposed over the $30 cap on motor-vehicle-license fees. I-976, § 2.

Plaintiffs argued to the trial court that the title misled voters into thinking that any “voter-approved charges in excess of $30 would be retained, or that at least voters would retain the authority to  approve such vehicle charges.” App. at 49. But that is not what the title says. The title first clearly informs voters that the measure would broadly “repeal, reduce, or remove authority to impose certain vehicle taxes and fees,” without exempting voter-approved charges. In a separate clause, the title  explains that one specific type of vehicle fee, “annual motor-vehicle license fees,” would be limited “to $30, except voter-approved charges.” The title thus does not say that all existing vehicle taxes and fees above $30 would continue if voter approved, nor that future voters could broadly increase vehicle taxes or fees beyond $30; both the limit and the  voter  approval option are specific to the fee mentioned in that clause, “motor vehicle-license fees,” a specific type of fee collected only by the State and regulated by the Washington Constitution. See RCW 46.04.671.

The plaintiffs also argued that it was misleading to say that car-tabs were rolled back to $30, when in fact certain other car-tab fees would be maintained that would keep them above $30 — and that it took a lot of scouring through state law to figure out which fees remained and which ones were repealed. Again, the defense of the ballot title language in the emergency appeal is so technical in its parsing of the language in the initiative and in state law that it tends to make the case for the plaintiffs:

Plaintiffs also claimed that it was misleading for the ballot title to inform voters that the $30 cap was subject to “voter-approved”  increases (as stated in Sections 1 and 2 of the initiative), when Section 6 repealed the authority for TBDs to levy voter-approved vehicle fees. See App. at 49. But Plaintiffs incorrectly conflate the TBD vehicle fees authorized in RCW 82.80.140 with the motor-vehicle-license fees imposed in RCW 46.17.350 and .355. By its own language, RCW 82.80.140 distinguishes the TBD “vehicle fees” authorized in that section from the “vehicle license fees” authorized under RCW 46.17.350 and .355. Similarly, RCW 46.04.671, which defines “vehicle license fees” for purposes of Title 46, makes clear that the term “does not include . . . taxes and fees collected by the department [of licensing] for other jurisdictions,” such as TBDs. In short, although motor-vehicle-license fees under chapter 46.17  RCW and TBD vehicle fees approved under RCW 82.80.140 are collected together, they are two separate fees. Notifying voters, as the ballot title did, that the measure limited “motor-vehicle-license fees to $30, except voter-approved charges,” was not misleading or false given that TBD fees are separate and would not be subject to the voter-approval exception.

This will be a quick turnaround for the Supreme Court; the Attorney General’s office has asked for a ruling before This Thursday, December 5th, since that is when I-976 would ordinarily take effect if not for the injunction.  The plaintiffs’ response is due to be filed by 3pm this afternoon; however, a spokesperson for the Seattle City Attorney’s Office said that their office didn’t receive the appeal until after 5pm last night, and they have requested an extension of their filing deadline to 9am tomorrow morning.