With a preliminary injunction now in place, the fight over Initiative 976 has moved on to the next step. Yesterday, both the plaintiffs and the defendants filed motions for summary judgment, asking the court to weigh the legal issues and find in their favor.
A motion for summary judgment is the fast-track to a final ruling by the court. It requires that all of the relevant facts and evidence already be known and not in dispute (thus not requiring a trial to weigh evidence and testimony) and that the only questions to be answered are legal ones. Since both sides have filed such motions, there is clearly no disagreement over the facts and evidence; now it’s just a battle of the legal arguments.
Much of the contents of both sides’ filings is not new, as this ground was covered during the earlier fight over whether the court should grant a preliminary injunction. In fact, the state Attorney General’s motion is almost completely a rehash of their earlier legal briefs. But the plaintiffs, in addition to reiterating their earlier reasons why they believe I-976 is unconstitutional, introduced several new arguments and points in their filing.
- They note that I-976 author Tim Eyman shopped for the best ballot title “to deceive the voters”: he submitted 13 separate “bring back $30 car tabs” initiatives, the substance of which was largely the same. The Attorney General’s office drafted ballot titles for each, and then Eyman picked the one he wanted. Some of the alternatives included more information about what the motor vehicle fees being rescinded were currently funding.
- The filing goes more in depth into the issues with forcing Sound Transit to retire, defease or refinance its bond debt. It reiterates that the subject is not germane with the other parts of I-976 (and thus violates the single-subject rule). But it also argues that it violates the state Constitution by forcing a local taxing authority to reallocate existing revenues away from their stated purpose and/or to collect new taxes — both of which the Constitution strictly forbids the state government from doing.
- It expands upon its earlier legal argument that a state initiative can’t undo a local tax. With the preliminary injunction filings, the State had made the point that local governments must have an explicit grant of taxing authority from the state, and the state is surely free to rescind that authority. But now the plaintiffs have a new twist on their argument: the Constitution says that the state may “vest” taxing authority in local governments. Here is Article 11 Section 12:
The legislature shall have no power to impose taxes upon counties, cities, towns or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof, the power to assess and collect taxes for such purposes.
Article VII, Section 9 has similar language for “local improvements.” The plaintiffs argue that “vest” means something different than “grant,” in that to the extent that the local authority uses those vested powers, the state government can’t undo it. To be clear, the plaintiffs concede that the state can divest the local authority of future power to tax; it just can’t touch an active use of that power. This is connected both to the “home rule” powers of local governments, and to the state Constitution’s explicit prohibition on the state government enacting local taxes.
This is worth pausing on for a moment: the state Constitution does not give the legislature the power to enact taxes for local purposes; it does, however, allow the legislature to control which local authorities may have that power, and over which kinds of taxes. This is a unique arrangement in that the legislature can delegate to other authorities a power that it does not possess itself. That is at the heart of the plaintiffs’ argument that “vesting” is different: the power is “vested” in local authorities and as such remains with it until the purpose of that power is completed, i.e. a tax that is imposed using that power expires. Since the state legislature can’t impose a local tax, it stands to reason that it also doesn’t have the power to rescind such a tax — thus making it critical that when the legislature divests a local authority of its power to tax, it isn’t retroactive.
It’s a great question of constitutional law that the state Supreme Court will have a marvelous time wrestling with. - On a similar note, the state Constitution requires that when taxes are imposed, the purpose of the tax and the uses of the revenues are specified. But I-976 will force Sound Transit, and potentially other local authorities, to divert other taxes to cover the loss in revenues from the vehicle fees that it rescinds. That is a no-no.
- Article I, Section 12 of the Constitution reads: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” The plaintiffs argue that by requiring that Kelley Blue Book valuations be used for taxing the value of a motor vehicle, I-976 violates the Constitution. Kelley is a private company, and the state will need to contract with that company in order to acquire the vehicle valuations in the Blue Book. enshrining that relationship in state law does seem like an impermissible privilege.
- With the City of Burien now joined as an additional plaintiff, they argue that I-976 impairs its bonds, which were issued with a tie to its vehicle-fee revenues for paying debt service. This was exactly the reason why one of Eyman’s earlier $30 car tab initiatives was thrown out. It’s been argued back and forth that the section of I-976 related to retirement of Sound Transit’s bonds was specifically included to avoid impairing its bonds, there is nothing in I-976 that applies similarly to Burien.
- The plaintiffs argue that, despite the fact that I-976 has a severability clause, it’s not severable and must be thrown out in its entirety. That’s obvious (and supported by case law) for some of the issues raised, such as violations of the single-subject and subject-in-title rules. But if a particular section is found to be unconstitutional (and the plaintiffs are arguing in several of their points) under what circumstances does that require throwing out the entire initiative? The plaintiffs argue that it’s required if the section in question is an essential part of the bill and voters wouldn’t have passed I-976 if that section weren’t included. They argue:
“Plaintiffs’ constitutional challenges, either individually or together, eliminate major sections of I-976; whatever remains is not what was voted upon. For example, the pervasive I-976 violations of Article II, Section 37 redline large swaths of the initiative. Similarly, substantial provisions of I-976 fall because they violate local tax vesting requirements under Art. 11, § 12; contract impairment provisions under Art. I, § 23; election interference requirements of Art. I, § 19; separation of powers requirements; and/or eliminate the measure’s key promise of $30 car tabs. An unconstitutional provision cannot be severed if it is “so connected to the remaining provisions that it cannot be reasonably believed that the legislative body would have passed the remainder of the act’s provisions without the invalid portion[],” or if “elimination of the invalid part would render the remaining part useless to accomplish the legislative purposes.” League of Women Voters of Wash., 184 Wn.2d at 411-12.
Given these widespread constitutional provisions violated by I-976, a pro forma severability clause cannot save it. I-976 must be declared unconstitutional in its entirety.”
This is a bit of a dangerous point to try to make, though, because it undermines the plaintiffs’ argument that the I-976 is a hodge-podge of separate pieces that lack “rational unity.” If the pieces are so connected as to be unseverable, don’t they inherently have rational unity?
Both sides will now have two weeks (due January 24) to file their responses to their opponent’s motion — and it will be interesting to see how the State responds to the plaintiffs’ new arguments. Replies to those responses are due one week after that (January 31), and a hearing is scheduled for February 7. At some point after that Judge Ferguson will make his ruling, and the march up to the state Supreme Court will begin.
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