Judge issues new orders in Initiative 976 case

Today Judge Marshall Ferguson issued new orders in the legal challenge to Initiative 976, in response to requests from both the plaintiffs and defendants to reconsider parts of his February 12th ruling that largely upheld Initiative 976.

Both the plaintiffs and defendants filed “motions to reconsider” with the judge after his ruling last month. The plaintiffs, including the City of Seattle, asked Ferguson to find that I-976 violated the constitutional provision that a bill must describe in full its impact on existing law, and that it violated the “single subject” requirement under the constitution. Ferguson rejected their arguments again and denied their motion.

The defendants, led by the State of Washington, asked the judge to reconsider his ruling that he couldn’t rule yet on whether the requirement to use Kelley Blue Book valuations was unconstitutional because there were material facts in dispute. They also asked the judge to lift his preliminary injunction except for its application to the City of Burien, where there is still an outstanding issue as to whether I-976 unconstitutionally impairs its bonds.  Ferguson’s ruling on these issues today is complicated, and it is a lesson in “be careful what you ask for.”

On the Kelley Blue Book valuations: the defendants argued that none of the remaining facts in dispute are relevant to deciding the case, and upon reconsideration Ferguson agreed. However, he then went on to rule that those sections of I-976 (sections 8 and 9) are indeed unconstitutional because they grant a special privilege to the company. He then severed them from the rest of I-976, tossed them out, and left the rest of the initiative intact.

Ferguson then agreed to the defendants’ request to lift his preliminary injunction except as it applies to the City of Burien’s claims. But in an interesting turn, he let it be known that he’s already decided that Burien’s bonds are impaired:

Indeed, the only reason that this Court did not enter summary judgment in favor of the City of Burien is that the defendants requested a continuance for discovery on the issue under CR 56(f).

The judge stayed his own order lifting the injunction until March 27, to give the plaintiffs a chance to argue that it should be left in place in order maintain the status quo while they appeal it up the line. He also observed that the plaintiffs could ask the state Court of Appeals for an injunction as an alternative to asking him to leave his in place.

The Seattle City Attorney’s Office issued a statement in response to the ruling today:

“We are pleased that Judge Ferguson invalidated a major portion of I-976, by agreeing with the City and its coalition partners including King County that the Kelley Blue Book provisions were unconstitutional. We continue to believe that mentioning Kelley Blue Book in the ballot title renders the entire Initiative unconstitutional. We intend to raise this concern and the other issues of constitutional importance as this case moves forward.”

That raises a couple of interesting issues that the two sides will argue upon appeal. First, the ballot title specifically mentioned the Kelly Blue Book valuation requirement; if that is unconstitutional, then does that make the ballot title unconstitutional? Second, does the fact that Judge Ferguson found the Kelly Blue Book provision severable reinforce the plaintiffs’ argument that I-976 impermissibly contains multiple subjects? We will surely hear more about this when the plaintiffs file their inevitable appeal.

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