I-976 appeal goes straight to the state Supreme Court

Last week the parties challenging the constitutionality of Initiative 976 filed notice that they intended to appeal Judge Marshall Ferguson’s recent ruling directly to the state Supreme Court. Today they kicked off the arguments, with an emergency motion to stay Ferguson’s ruling until their appeal is resolved.

You may recall that on March 12 Judge Ferguson ruled on the two motions for reconsideration submitted by both sides; he denied the plaintiffs’ motion in full, and partially granted the defendants’ motion — but in so doing found the two sections of I-976 relating to mandating Kelley Blue Book valuations to be unconstitutional and severing those portions from the remainder of the bill. Having ruled on the relevant legal issues, Ferguson lifted his preliminary injunction other than as it relates to the City of Burien’s unresolved claims. However, Ferguson agreed to delay the lifting of the preliminary injunction until March 27th to give the plaintiffs an opportunity to ask either him to leave it in place pending appeal or an appeals court to grant a stay of Ferguson’s ruling while the appeal plays out.

Last week, in addition to filing their notice of appeal to the state Supreme Court, the plaintiffs also asked Judge Ferguson to extend the delay on lifting the preliminary injunction for up to 2 weeks more, claiming that the COVID-19 outbreak is impeding the courts’ ability to respond to motions in a timely manner. Ferguson has yet to rule on that motion.

Today there were three additional filings:

  • Judge Ferguson entered a final judgment based on his original order and his responses to the motions for reconsideration. As part of doing so, he declared that he had reached final resolution on all the claims except the City of Burien’s claim that I-976 impairs its bonds, and that those claims were now ripe for appeal to a higher court. This was important because for the most part appeals courts don’t like to handle cases piecemeal; they want the lower court to cleanly finish, and then they can take up the case. So Ferguson’s final judgment order cleared the path for appeal.
  • In a separate order, Ferguson certified the case for immediate appeal, noting that nothing that transpires from this point forward on the City of Burien’s remaining claim will raise a cause for reconsideration of any of the other issues. However, he did note that if an appeals court throws out I-976 in its entirety, that would moot Burien’s claim; so to that end, he issued a stay to any further proceedings in his court on that claim until the appeal is resolved.
  • The plaintiffs filed a emergency motion with the state Supreme Court, asking the Court to leave the preliminary injunction in place while the appeal is being litigated. The brief summarizes the issues that are in play, though notes that whereas to obtain the preliminary injunction in the first place the plaintiffs had to prove that they were likely to succeed on the merits, now to gain an emergency stay leaving the injunction in place, the plaintiffs just need to show that there are debatable issues. They list the issues they raised in the trial court, and add one more: the fact that Ferguson found the two sections related to Kelly Blue Book values to be severable from the rest of the bill despite the fact that they are described in the initiative’s title. The plaintiffs also need to show that they would suffer if the injunction is lifted, and here too they cite the COVID-19 emergency as evidence since it is further deepening the financial hole that cities and counties find themselves in if I-976 is allowed to be implemented.

The defendants will get a chance to file their own brief opposing the plaintiffs’ emergency motion; then the Supreme Court will rule on the motion.  In the meantime, it seems likely that Judge Ferguson will grant a short extension to his March 27th deadline to give the Supreme Court time to decide. But since the Supreme Court declined to overrule Ferguson last fall when he originally ordered the preliminary injunction, one would assume that the Court will likely allow it to stay in place.

The more interesting question is whether the Supreme Court will take the case directly, or kick it back down to the Court of Appeals to hear it first. The judges are certainly aware that even if the path goes through the Court of Appeals, it will eventually end up back on their doorstep, and as such they may choose simply to expedite the process. On the other hand, there are a lot of pieces to the I-976 puzzle, and they may prefer the appeals court to further develop the legal arguments before they take it on. What makes that scenario more plausible is that Judge Ferguson didn’t fully explain all of his decisions, such as the why the Kelley Blue Book sections are severable despite being listed in the title of the initiative. Appeals courts review legal issues (as opposed to evidentiary issues) de novo, or from first principles; nevertheless, they still appreciate having lower court judges explore the legal arguments first.

But the most significant impact of having the appeal go directly to the state Supreme Court, if they choose to take it up now, is that it will bring the ultimate fate of I-976 to resolution several months faster.


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