Today both the plaintiffs and the defendants in the legal challenge to Initiative 976 filed motions for Judge Marshall Ferguson to reconsider his recent ruling.
First, the plaintiffs: they ask the judge to take another look at two separate parts of his ruling.
- Where he held that I-976 did not violate article II section 37 of the state Constitution by not setting out in full the impact and effect of the initiative on other existing laws. The plaintiffs cite a Washington Supreme Court case that came out the day after Ferguson’s ruling, that they believe clarifies the requirements. Ferguson had ruled that I-976’s impact on a handful of laws that it didn’t explicitly cite was “manifestly straightforward,” but the plaintiffs say that the new Supreme Court case (coincidentally concerning Sound Transit’s use of two different vehicle valuation methods) establishes a higher bar. This is a bit of a stretch, because the new case affirmed the constitutionality of a law because it met a higher bar, rather than throwing it out because it didn’t meet that bar — so it doesn’t explicitly say that any law that doesn’t reach that bar is unconstitutional. Nevertheless, the plaintiffs must raise the issue now so that they can raise it again in higher courts as they appeal the case up the line.
- Where he did not address one argument that the plaintiffs made in their briefs. The judge ruled that the pivotal phrase “except voter approved” in the ballot title was accurate because it described a mechanism for future increases to vehicle license fees — rather than what would happen to existing license fees. But the plaintiffs had argued that such an interpretation would introduce an impermissible second subject into I-976, and cited three key cases where courts had ruled that initiatives that both repealed a tax and set the rules for passage of future taxes contained two separate subjects. Since Judge Ferguson did not rule on that question, they are asking him to do so now.
Now, the defendants: they also raise two points, though theirs are more closely connected.
- Ferguson denied the motion for summary judgment related to the Kelley Blue Book valuation issue because he determined that there were facts still in dispute, in particular whether the state needed to sign an exclusive contract with Kelly Blue Book to obtain vehicle valuations (thus potentially creating an unconstitutional privilege for one company under state law). The defendants argue that even if an exclusive contract is required, that does not equate to a “privilege” for the company — and so the judge should go ahead and rule for the defendants on that issue and dismiss the claim. They also argue that none of the plaintiffs have standing to argue that it would be an unconstitutional privilege, since none of them are competitors to Kelley Blue Book and thus are not aggrieved parties.
- They argue that the judge should go ahead and lift the preliminary injunction preventing implementation of I-976. They argue that the Kelley Blue Book issue, even if the judge lets it continue, is severable and as such won’t influence the rest of the initiative. And they argue the injunction should be lifted despite one other outstanding issue: whether I-976 impairs the City of Burien’s outstanding bonds. The defendants argue that even if I-976 is found to impair Burien’s bonds, the proper response would be to exempt those bonds from I-976, but let the initiative otherwise go into effect in the rest of the state. That’s a somewhat dubious interpretation of the state Supreme Court’s ruling on Tim Eyman previous attempt at a $30 car tab, I-776. And the argument is unlikely to go anywhere, because regardless of how Judge Ferguson might feel about that he is most likely to leave the injunction in place while his ruling is appealed.
Judges don’t makes a practice of granting motions to reconsider; he is more likely to take up the plaintiffs’ in this case because of the new precedent set by the Supreme Court and because he didn’t rule on one particular issue, but neither is likely to change his overall ruling. Expect response briefs in a couple of weeks, then the judge will rule quickly afterwards.
UPDATE: Intervenor Clint Didier also filed a motion for reconsidration today, also arguing that the judge should grant the defendants’ motion to dismiss on the Kelley Blue Book issue. It’s not a well-constructed argument, however, and I don’t recommend you spend time reading it.
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