Newsroom Archives by Year: 2012

Tired of legislative gridlock? Then vote NO on I-1185

EndorsementsRethinking and Reframing

The Olympian, our state capital’s longtime daily newspaper, published a truly superlative editorial today calling for the rejection of Tim Eyman and BP’s Initiative 1185 which we commend to the attention of voters, activists, and reporters. It’s one of the best editorials we’ve seen in a long time, and we can’t say enough good things about it. Here are its opening lines:

Voters, are you tired of a Legislature that can’t make progress on fully funding basic education?

Do you want less-congested highways, and lower tolls on bridges? Do you want state parks that stay open, and in good repair? Do you want college tuitions that your family can afford?

Do you want quick response times from law enforcement, fire fighters and ambulances when you need them?

If you do, then you must reject Initiative 1185 on Nov. 6.

By continuing to support these Tim Eyman initiatives you are subverting a fundamental principle of representative democracy.

That principle? Majority rule with minority rights. We will cease to be a democracy if power becomes concentrated in the hands of the few instead of the many. Initiative 1185, like its predecessors, takes power away from the many and gives it to the few. It is intended to prevent our Legislature from functioning democratically as our founders intended it to. I-1185 allows seventeen out of forty nine senators, or thirty-three out of ninety-eight representatives, to kill any bill that raises (or even recovers) revenue for the state treasury.

Corporate lobbyists are for I-1185 because it’s easier to manipulate a system that’s rigged. That’s why companies like BP, ConocoPhillips, Shell, and Tesoro gave Tim Eyman and his buddies more than a million dollars to buy signatures for I-1185. I-1185 helps them protect their profits… at our expense.

Join us in voting NO on I-1185. Let’s uphold our Constitution and reject this attack on our democracy.

Everett Herald takes courageous, thoughtful position against Tim Eyman’s I-1185

EndorsementsFrom the Campaign Trail

Recognizing that Tim Eyman’s latest oil and beer soaked initiative would prevent our Legislature from democratically functioning as our founders intended it to, the Everett Herald today emphatically recommended a NO vote on I-1185, joining NPI’s Permanent Defense and hundreds of other organizations in opposing the measure.

The paper’s stance is a reversal from just two years ago, when The Herald backed I-1185’s predecessor, I-1053. Of its change of heart, the paper’s editors wrote:

We were wrong. Rather than pressure reforms, Eyman’s supermajority rule has spurred paralysis. Rather than bolster creative solutions to benefit the average taxpayer, the two-thirds’ mandate is now one of the apron strings special interests hide behind to avoid ponying up.

The latest incarnation of Eyman’s supermajority effort, I-1185, is bankrolled by the likes of BP (the company that brought us the Deepwater Horizon oil spill) and ConocoPhillips. Each has contributed $100,000, with an additional $400,000 from the Beer Institute. Why so much loot from Big Oil and non-Washington booze interests? With 1185, it takes a simple majority vote in the Legislature to create a tax loophole, but a two-thirds’ supermajority to undo it. Not a bad scheme if you’re a deep-pocketed special interest. It’s a much higher hurdle, however, for Washington families that support tax fairness.

We commend The Herald for this editorial. It’s courageous, it’s thoughtful, and it’s honest. The Herald is correct in asserting that the two-thirds scheme leads to gridlock. It allows seventeen state senators and thirty-three state representatives to block bills that would raise revenue in their respective houses. That’s undemocratic and unconstitutional. Article II, Section 22 of our state Constitution plainly states that bills shall pass by majority vote. Majority vote means fifty out of ninety-eight in the House, and twenty-five out of forty-nine in the Senate. No more, no less.

Proponents of I-1185 don’t have a problem with allowing majority votes to decide the fate of legislation that creates new tax breaks, or in legislative parlance, tax preferences, as The Herald notes. But they argue that recovering revenue for our state treasury by repealing a loophole amounts to a tax increase, and should require a two-thirds vote. That’s a double standard. If it takes a two-thirds vote to get rid of a tax break, it should take a two-thirds vote to create one.

Like its predecessors I-960 and I-1053, I-1185 is unconstitutional, undemocratic, unfair, and unsound. Vote NO on I-1185.

Two-thirds is *not* a majority: New pictogram explains what I-1185, lawsuit against I-1053 are really about

From the Campaign TrailIn the CourtsRethinking and Reframing

Today, NPI’s Permanent Defense is releasing a new pictogram that explains what Initiative 1185 and the lawsuit against I-1053 are really about.

Inspired by NPI’s late board member Lynn Allen, the artist and storyteller who created a similar visual for NPI’s 2010 video explaining the cost and consequences of I-1053, the pictogram shows how the two-thirds scheme embraced by Tim Eyman and big oil companies like BP and Royal Dutch Shell is preventing our Legislature from functioning as our founders intended it to.

What I-1185 and the lawsuit against I-1053 are really about
Click on thumbnail to see larger image

On the left side of the pictogram is an illustration of what happens when Article II, Section 22 of our state Constitution is in force. Fifty votes (out of ninety-eight total) are sufficient to pass a revenue bill in the House, and twenty-five votes (out of forty-nine total) are sufficient to pass a revenue bill in the Senate.

On the right side of the pictogram is an illustration of what the two-thirds scheme does when it it allowed to illegitimately take precedence over Article II, Section 22. Power is unconstitutionally and undemocratically transferred to a minority – specifically, thirty-three representatives in the House and seventeen senators in the Senate – who gain veto power over the majority.

The words “control outcome” are used in the pictogram to explain who really has power in each situation. When the Legislature operates in accordance with the rules from our Constitution, the majority prevails, because a majority vote is sufficient to pass a bill – even a bill that raises revenue. But when Tim Eyman and Big Oil’s rules are substituted for the Constitution’s rules, control of the outcome passes into the hands of just a few lawmakers, who can override their colleagues.

“This pictogram gives meaning to the adage,  ‘A picture is worth a thousand words'”, said NPI founder Andrew Villeneuve. “It is hard to quickly explain to voters the destructive impact that I-960 and I-1053 have had on our state. But this pictogram tells the story, through simple stick figures and easy-to-read fractions.”

“What the pictogram tells us is that above all, this two-thirds scam has sabotaged our plan of government and prevented our Legislature from operating democratically as it always should. It has changed the decision-making process.”

“That has been the most important consequence. The damage isn’t necessarily visible, but it’s there all of the same… beneath the surface.”

“Tim Eyman has a simple slogan he has been using for years, for I-960, for I-1053, and now I-1185: ‘We can’t trust Olympia, so let’s make it tougher for politicians to raise taxes.’ As far as sound bites go, it’s short, but it’s definitely not sweet. The word sour would be a more fitting descriptor. It’s a manipulative sales pitch that reeks of cynicism and improvidence. It should be obvious by now that Eyman thrives on distrust in government; he has an interest in sowing fear, uncertainty, and doubt in people’s minds. It’s good for business.”

“Eyman wants people to think that state government is the problem, so they’ll overlook the fact that his initiative factory is funded by powerful corporations like BP, ConocoPhillips, and Royal Dutch Shell.”

“These corporations want to trample all over our state Constitution so their lobbyists can wield even more power in our state’s capital than they already do.”

“From looking at the pictogram, we can see that requiring a two-thirds vote to raise revenue is not democratic. The phrase ‘two-thirds majority’ is a misnomer because two-thirds is not a majority. It’s a supermajority. And here’s the thing: A supermajority is actually the inverse of a submajority, which even Rob McKenna’s office agrees is not a majority. Requiring a two-thirds vote to raise revenue, in practice, means that just over one-third of the lawmakers of each house control the outcome. They can say no to everybody else.”

It is worth noting that our Constitution itself cannot be altered by majority vote. But that is because it is our highest law. It is the sacred document that protects minority rights. As recent research by Perkins Coie’s David Perez shows, our founders debated where and when to require supermajorities; they knew that in any instance where a higher threshold was put in place, the minority would control the outcome.

The rules they gave us say a constitutional amendment requires a two-thirds vote, but bills require just a majority vote. That way, we have majority rule with minority rights. And by majority vote, our founders meant greater than fifty percent.

No more, no less.

What I-1185 and the lawsuit against I-1053 are really about is this: Will we uphold Washington’s Constitution or not? If we care about the rule of law and the plan of government our founders gave us, we ought to reject I-1185 at the ballot, and our Supreme Court ought to uphold Judge Bruce Heller’s ruling striking down I-1053.

Tim Eyman claims he’s “optimistic” that Supreme Court will side with him in lawsuit against I-1053

In the CourtsRethinking and Reframing

Tomorrow, the highest court of law in the State of Washington – the Supreme Court – will hear oral argument in League of Education Voters et. al. v. State of Washington, the legal challenge against Tim Eyman’s I-1053 originally filed over a year ago in King County Superior Court by a coalition of parents, teachers, and lawmakers.

As was predicted when the case was filed, it has now reached the state Supreme Court on appeal. Attorney General Rob McKenna’s office is asking the Court to throw out the decision reached by widely respected Judge Bruce E. Heller, who found that I-1053 was unconstitutional and void in its entirety.

The plaintiffs in the case, represented by Paul Lawrence, are asking the Court to sustain Heller’s ruling and strike I-1053 from the Revised Code of Washington.

I-1053 sponsor Tim Eyman is not directly involved in the litigation (the attorney general’s office is required by law to defend initiatives) but, as usual, he is cheering on Rob McKenna, whose legal team is asking the Supreme Court to dismiss the case on a technicality, and failing that, find I-1053 constitutional.

Eyman sent out an email earlier today listing several reasons why he’s “optimistic” the Court will side with him and overturn Heller’s decision… either based on a technicality, or on the merits. He all but declares victory prematurely, equating the case against I-1053 to Brown v. Owen, the last lawsuit to challenge the two-thirds scheme to raise revenue that Eyman has turned into his own pet cause.

Let’s go through Eyman’s reasons and add some context and commentary, shall we?

Reason number one:

EYMAN:  Just two years ago, a unanimous state supreme court rejected a very similar lawsuit under very similar circumstances (one chamber passed a tax increase and a lawsuit was filed challenging the two-thirds).  That 9-0 opinion, authored by Justice Mary Fairhurst, the most liberal justice on the state supreme court, resulted in a “finding this a political question” that should be resolved through the legislative process.

Here Eyman is referring to the Supreme Court’s decision in Brown v. Owen. The Court held in that case that it could not grant Senate Majority Leader Lisa Brown (the plaintiff) a writ of mandamus ordering Lieutenant Governor Brad Owen (the defendant) to forward a revenue-raising bill that had achieved a majority vote  to the House of Representative (even though the bill had achieved the constitutionally required majority).

Owen, interpreting Initiative 960, had ruled that the bill in question needed a two-thirds vote to pass, in accordance with the initiative, even though Article II, Section 22 says that the standard for passage of bills is a majority vote. Brown then took Owen to court, hoping to get the Supreme Court to decide the constitutionality of I-960. The Court declined to do so. But in dismissing the action, it did not find I-960 to be constitutional.

Nor did the Court say, as Eyman seems to be suggesting by quoting one phrase from the decision, that the issue of whether I-960 was constitutional was not appropriate for the court to decide. In fact, the Court reminded all parties in the case that judicial review is the job of the judiciary:

While serving as the presiding officer of the senate, the lieutenant governor is an officer of the legislative branch. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 98, 273 P.2d 464 (1954). It is beyond the power of the legislature to rule that a law it has enacted is unconstitutional. Wash. State Farm Bureau, 162 Wn.2d at 303-04 (“‘[T]he legislature is precluded by the constitutional doctrine of separation of powers from making judicial determinations.’” (alteration in original) (quoting O’Brien, 85 Wn.2d at 271)).

This case is like Brown v. Owen in that it challenges the constitutionality of an initiative requiring two-thirds votes for bills that raise revenue, but in other respects, it is quite different. For instance, the relief requested is not a writ of mandamus. As Judge Bruce Heller explained in his opinion striking down I-1053:

This case represents the first constitutional challenge to the supermajority and mandatory referendum requirements brought before a trial court. Unlike Walker and Brown, the plaintiffs are asking for declaratory relief instead of a writ of mandamus. In other words, they are requesting a ruling regarding the constitutionality of a statute, as opposed to an order requiring another branch of government to perform or refrain from performing an act.

Judge Heller concluded that the request for declaratory relief was properly brought, and proceeded to consider whether I-1053 was constitutional. He determined that it was not.

The takeaway is that this case – the LEV case –  is dissimilar in important ways from Brown v. Owen, contrary to what Tim Eyman has said. In Brown, the Senate Majority Leader asked the Supreme Court itself to reach the issue of I-960’s constitutionality by granting her application for a writ of mandamus. The Court deemed the request improper, so it did not consider whether I-96o was constitutional (I-1053, its successor, was not in effect at the time). In LEV, a diverse coalition of plaintiffs went to a trial court first for declaratory relief, which was granted. No writ of mandamus was asked for.

On to Eyman’s second reason:

EYMAN: In 1994, the Court found that individual legislators and special interest groups lack standing to bring lawsuits like this (“When a statute may be amended by the very persons the Petitioners claim are being harmed, state legislators, we cannot do otherwise than find that this is only a speculative dispute.”).

Attorney General Rob McKenna’s office made this same argument to Judge Heller in urging that the case be dismissed, but Judge Heller found that the plaintiffs did, in fact, have standing. Here is his reasoning:

Plaintiffs have established standing to bring this action. A plaintiff has standing to challenge a statute’s constitutionality if he or she can show that (1) the “interest sought to be protected . . is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question” and (2) a “sufficient factual injury.” Seattle School Dist., 90 Wn.2d at 493-94. The legislator plaintiffs have an interest in advancing bills through the legislative process with the constitutionally required number of votes. The non-legislator plaintiffs have an interest in the adequate funding of education. The legislator plaintiffs allege that they have suffered injury because they have been unable to address funding gaps in education. The plaintiffs from the educational community allege that cuts in educational funding and services have resulted in substantial harm to educators, teachers, students and education groups, such as the plaintiffs. Plaintiffs Kim Bielski and Ryan Painter, for example, are teachers who lost their jobs as a result of budget cuts.

On to Eyman’s third reason:

EYMAN: The tax increase they tried to pass last year was approved this year, arguably making their current lawsuit moot.

It’s telling that Eyman threw in the word “arguably”. This lawsuit is far from being moot. As Eyman well knows, the purpose of the two-thirds scheme is to allow a minority of legislators to undemocratically wield veto power over bills that raise revenue. The two-thirds scheme has been used – and will continue to be used – to block legislation that would fund vital state services if it is not struck down. As Judge Heller notes:

Since Walker, 18 years have passed. During this time, except for brief periods when the legislature suspended it, the supermajority requirement has been in effect. In McCleary, the Supreme Court described the legislature’s inability to fund constitutionally required basic K-12 education. 173 Wn.2d at 532-37. SBH 2078, which would have provided funds to reduce K-3 class size, failed to pass in the House because of the supermajority requirement. The inability of the House to pass this legislation with a simple majority demonstrates that the dispute over the constitutionality of the supermajority requirement is an actual one with known consequences.

On to Eyman’s fourth reason:

EYMAN: Lawsuits like this aren’t valid if the Legislature doesn’t exhaust all their remedies before going to court. They could have appealed the ruling of the Chair and passed the tax increase; they didn’t.

Again, contrary to what Eyman implies, the Legislature is not the plaintiff in this case. The plaintiffs are a coalition of groups and individuals, of which the League of Education Voters (LEV) is named first. The League and its members are not legislators; they did not have the ability to appeal the ruling of the presiding officer of the House of Representatives (who, incidentally, holds the title of Speaker, not Chair).

Rob McKenna’s legal team made this same argument in Superior Court as well (noticing a pattern here?), and Judge Heller shot it down:

According to the State [represented by Rob McKenna’s office], under House rules a majority of the legislators could have overruled the Speaker’s ruling that RCW 43.135.034(1) required the vote of two-thirds of the members and passed SHB 2078 by a majority.

This argument reflects a fundamental misunderstanding of the respective roles of the judiciary and the legislature. It is for the courts, not the legislature, to determine the constitutionality of a statute. Marbury v. Madison, 5 U.S. 137, 177 (1803)(“It is emphatically the province and duty of the judicial department to say what the law is”). Our Supreme Court affirmed this principle in Brown, emphasizing that under the constitutional doctrine of separation of powers, the legislature may not rule a law it has enacted to be unconstitutional. 165 Wn.2d at 726-27. Accordingly, this court will not require the legislature to pass a tax bill in contravention of the statute’s supermajority requirement as a precondition for the court’s exercising jurisdiction over this dispute.

Phew. Okay, we’re almost done. Here’s the fifth reason on Eyman’s list:

EYMAN: A law is constitutional unless the Constitution expressly prohibits it. Our Constitution does not.

This is not how constitutional law works. A statute that conflicts with any part of the Constitution is unconstitutional, period. Article I, Section 29 declares:

The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.

For instance:

SECTION 22. PASSAGE OF BILLS. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

The crux of the dispute in this case is whether I-1053 violates the above provision (Article II, Section 22), as well as Article II, Section 1.

Judge Heller found that I-1053 violates both provisions.

One more to go! Number six:

EYMAN: For a lawsuit to be valid, the dispute must be “between parties having genuine and opposing interests” that are “direct and substantial.”  The Attorney General has a job to do, defend initiatives, but in my view, their office lacks the direct and substantial interest needed to surpass this threshold.

We’re not sure what point Eyman is attempting to make here. Whose “office” is he referring to when he says “their office”? There is more than one plaintiff, and many of the plaintiffs are not elected officials. As we’ve already observed, this dispute is over a matter that is in fact real and justiciable. That is precisely why Judge Heller granted the plaintiffs the declaratory relief they asked for back in May.

To quote Judge Heller one final time:

A justiciable controversy is one that is (1) an actual, present, and existing dispute, (2) between parties having genuine and opposing interests, (3) which interests are direct and substantial, and (4) a judicial determination of which will be final and conclusive. To-Ro Trade Shows, 144 Wn.2d at 411. The parties in this matter plainly have genuinely and opposing interests, and a judicial ruling on the constitutionality of the supermajority and mandatory referendum requirements will constitute a final and conclusive resolution of this dispute.

We agree with Judge Heller. This argument has been festering for years; it is time for the matter to be resolved. As established in Marbury v. Madison long ago, only the courts have the ability to decide whether a law is constitutional or not. The plaintiffs in this lawsuit are asking the Supreme Court to consider whether I-1053 violates longstanding provisions of our state’s highest law, including Article II, Section 22. They are not asking the Court to settle a parliamentary dispute in the Legislature.

Several months ago, the Court had an opportunity to stay Judge Heller’s decision when it took up the case. It did not, even though it was asked to by Rob McKenna. That means that I-1053 is currently not in effect. Here’s a question worth pondering: If the justices felt that Heller’s decision was way off base, wouldn’t they have granted McKenna’s request for a stay? It is not unusual for such requests to be granted.

And yet, in this instance, the Court said no. They have let Heller’s decision stand even as they take up the matter. That gives us reason to hope that they will ultimately uphold his decision, striking down this two-thirds nonsense once and for all.

POSTSCRIPT: It is worth mentioning that last month, Eyman himself asked a court of law for a writ of mandamus… he wanted to force the Office of Financial Management to retract its fiscal impact statement for Initiative 1185 and replace it with a statement saying there was no fiscal impact at all. The judge who heard the case turned Eyman down and threw out his suit. The irony of Eyman’s prayer for relief in that case was immediately apparent to us when we read the brief Eyman’s friends at Groen & Stephens helped him write… though it may not have been obvious to Eyman, who has a penchant for sponsoring unconstitutional initiatives.

Tim Eyman’s lawsuit against the Office of Financial Management is without merit

In the CourtsRethinking and Reframing

Last week, as required by law, the Office of Financial Management (OFM) completed and published its fiscal impact statement for Initiative 1185, Tim Eyman’s latest attempt to mess up the plan of government that our founders gave us at statehood.

As we have previously noted, Initiative 1185 basically attempts to do two things:

  • Restate the unconstitutional, undemocratic provision of I-1053 that says any combination of actions that results in higher revenue need a two-thirds vote of each house of the Legislature, and…
  • …  Restate the provision of I-1053 that requires the Legislature to vote on fee increases.

OFM determined that this second provision in I-1185 (the one that pertains to fees) would prevent some already-scheduled toll and fee increases from going into effect, unless the Legislature intervened.

Consequently, OFM attached a price tag to Initiative 1185, estimating that adoption of the initiative would cost the state between $22 and $33 million over the next five years. OFM also concluded that “requiring new legislative approval to impose fees will also prevent implementation of certain businesses and health care certifications.” The agency has calculated that without implementation of those certifications, $2.7 million in revenue will be eliminated, and $3.6 million in expenses will also be eliminated.

Tim Eyman, who is showrunning I-1185 on behalf of powerful, greedy corporations like BP, ConocoPhillips, Shell, and Tesoro, is very unhappy that OFM has exposed what was previously a hidden cost of I-1053 and now I-1185. So he’s filed suit against the state demanding that he and his lawyers be allowed to rewrite the fiscal impact statement to wrongly claim that I-1185 will have no fiscal impact.

Hilariously, Eyman is asking Thurston County Superior Court James Dixon to grant him a writ of mandamus to force the Office of Financial Management to issue a new fiscal impact statement declaring that I-1185 will have no fiscal impact. Failing that, Eyman wants a writ of prohibition to block Secretary of State Sam Reed from including OFM’s already-completed statement in the voters’ pamphlet.

Eyman will be representing himself in court this Friday to argue his case (and no, we’re not making this up), because apparently his corporate backers weren’t interested in paying for someone who actually understands the law (and has been admitted to the bar to practice it) to represent Eyman. Eyman did get help from his friends at Groen & Stepehens to prepare a brief in advance of the court hearing, in which Eyman states the following:

Plaintiff is concerned about inaccurate assumptions expressed in voters’ pamphlet for  two reasons. First, inaccuracies might mislead the voters about what the measure actually does and Washington Courts have been vigilant in avoiding voter confusion. In several cases, the Washington Supreme Court has explained its concern with the potential misleading nature have been vigilant in avoiding voter confusion.

Wait a second. Hasn’t Tim always argued that the voters are smart enough to know when they’re being misled? If OFM is deliberately attempting to deceive the public – as Master Deceiver Tim Eyman says they are – then we’ve got nothing to worry about. The voters will see right through them when it comes time to make a decision on I-1185.

Seriously, though, it’s beyond ironic that Tim Eyman is expressing concern about “inaccuracies” that “might mislead the voters about what the measure actually does”. Tim has been misleading the voters and the press about the true costs and consequences of his initiatives for years.

We’ve seen it firsthand – we’ve been responding to his fabrications for more than a decade. Tim is a very slick salesman … nobody is more effective at spreading misinformation about state government than he is.

This lawsuit is merely Tim’s latest attempt to spread misinformation. What he is trying to do is mask some of the harm that his initiative would cause by hiding OFM’s analysis from the people of the State of Washington.

OFM has a duty to the people and the elected leaders of Washington State to accurately identify and describe fiscal impacts of proposed initiatives.

In 2010, prior to the adoption of Initiative 1053, the agency determined that enactment of I-1053 would not have a direct fiscal impact. At the time, I-1053 was not law, so OFM was making an educated guess about the initiative.

As it turned out, the fee provision of I-1053 (which was not present in I-1053’s predecessor, I-960) did have a direct fiscal impact, so OFM appropriately took that into account when preparing the fiscal impact statement for I-1185.

Tim Eyman is now asking a court to force OFM to not account for its prior mistake – in other words, to not make use of what it has learned about I-1053 since I-1053 went into effect – because he does not want the truth about the consequences of I-1053’s clone I-1185 to be known and to be discussed.

Eyman’s lawsuit is completely without merit. OFM has not committed any wrongdoing. The agency should not be compelled to reissue its fiscal impact statement for I-1185 simply because Tim Eyman doesn’t like it.

Attorney General Rob McKenna – whose office has often defended Eyman’s initiatives (including I-1053 and I-960) in court – has asked Judge James Dixon to deny Eyman’s motion and dismiss the case with prejudice. The brief authored by Steve Dietrich in response to Eyman’s complaint makes it plainly clear that Eyman’s requests for writs of mandamus and prohibition are unwarranted:

Plaintiff argues that one particular assumption that OFM decided to include in the fiscal impact statement is subjective, “inaccurate,” “erroneous,” or “defective” and that it may influence future judicial construction of 1-1185. Plaintiff fundamentally misapprehends the nature of assumptions and the purpose of a fiscal impact statement. A fiscal impact statement is an estimate of the fiscal consequences of a proposed ballot measure if enacted into law, based on assumptions concerning its operation and activities of state government. By definition, assumptions are premises that may or may not hold true. An assumption is “[a] statement accepted or supposed true without proof or demonstration.” American Heritage Dictionary 80 (new college ed. 1982). Voters can judge OFM’s assumptions for themselves and determine whether they agree with them; and certainly, proponents and opponents of the measure may take issue with OFM’ s assumptions and estimates in the public debate that surrounds a ballot measure election. But the assumptions may not be challenged in an action in mandamus.

Because OFM’s responsibility under RCW 29A.72.025 to determine the content of the fiscal impact statement requires the exercise of discretion, Plaintiff’s action for a writ of mandamus must fail. The writ is not available to force OFM to make any particular assumption and Plaintiff’s petition and motion should be denied. For the same reason, Plaintiff’s argument taking issue with one particular OFM assumption is irrelevant. The decision about whether it is necessary to assume something about the effect of the measure for the purpose of making the estimate represents the exercise of OFM’s discretion. The decision about the substance of necessary assumption also involves the exercise of discretion.

Courts have historically been reluctant to issue writs of mandamus or prohibition when asked. Senate Majority Leader Lisa Brown found this out several years ago when the Supreme Court refused to grant her request for a writ of mandamus to overturn Lieutenant Governor Brad Owen’s ruling upholding I-960’s unconstitutional two-thirds requirement in the Senate. (Owen and Brown had been hoping that the court would strike I-960 down as unconstitutional so that the Legislature would be free to democratically deal with the state’s budget shortfall). The Court declined to act, reasoning:

While serving as the presiding officer of the senate, the lieutenant governor is an officer of the legislative branch. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 98, 273 P.2d 464 (1954). It is beyond the power of the legislature to rule that a law it has enacted is unconstitutional. Wash. State Farm Bureau, 162 Wn.2d at 303-04 (“‘[T]he legislature is precluded by the constitutional doctrine of separation of powers from making judicial determinations.’” (alteration in original) (quoting O’Brien, 85 Wn.2d at 271)).

Owen acted properly by declining to decide the constitutionality of RCW 43.135.035(1) and did not exceed his authority or abuse his discretion by ruling on a point of order consistent with RCW 43.135.035(1). Because we find the duties at issue are discretionary and find no abuse of discretion, we hold that a writ of mandamus would be improper.

Emphasis is ours.

The Court’s decision not to act in that case benefited Eyman, because it did not find his two-thirds scheme to be unconstitutional. (The Court will have another opportunity to do so later this year after it has heard oral arguments in the lawsuit against I-1053).

Ironically, Eyman is now the one asking the judiciary for a writ of mandamus (and, failing that, a writ of prohibition).

If Judge Dixon applies precedent and sense to this case, he will conclude that Eyman’s motion ought to be denied, and the case dismissed.

Supreme Court agrees to hear appeal of Judge Heller’s decision in LEV v. State

In the Courts

As expected, the Washington State Supreme Court has agreed to hear an appeal of Judge Bruce Heller’s May decision striking down Tim Eyman’s Initiative 1053 in its entirety. The appeal was filed by Attorney General Rob McKenna’s office, which is defending the state against the lawsuit.

In a two-page order, the court unanimously accepted the case for review, but refused to grant McKenna’s request for a stay of Judge Heller’s decision. What that means is that Judge Heller’s decision will remain in force for the time being. I-1053 is not in effect; if Governor Gregoire called the Legislature into session next week, the Legislature could democratically raise revenue by majority vote like it’s supposed to be able to do.

The text of the order was as follows:

This matter came before the Court on its July 11, 2012, En Banc Conference and the Court having unanimously determined that the following order should be entered:

Now, therefore, it is hereby

ORDERED: The above reference matter will be retained for decision by the Supreme Court. The RESPONDENT’S MOTION FOR EXPEDITED REVIEW is granted. The STATE’S MOTION FOR STAY PENDING APPEAL is denied.

DATED at Olympia, Washington this 12th day of July, 2012.

For the Court,

Barbara Madsen
Chief Justice

The Court will likely hear oral arguments in the case sometime during the fall.

NO on 1185: Permanent Defense calls on Washingtonians to stop greed, reject latest oil-soaked Eyman initiative this November

Ballot WatchdoggingEye on Money: DevelopmentsRethinking and ReframingStatements & AdvisoriesThreat Analysis

Earlier today in Olympia, Tim Eyman made his annual appearance at the Secretary of State’s Elections Division (as usual, accompanied by Jack and Mike Fagan) to turn in signatures for his latest initiative, made possible by more than a million dollars in contributions from some of the world’s most powerful corporations. The list includes BP, Shell, ConocoPhillips, Coca-Cola, Pepsi, Dr Pepper Snapple Group (through the American Beverage Association), Anheuser-Busch, MillerCoors, Crown Imports, and Heineken USA (through the Beer Institute).

Initiative 1185 is a clone of Initiative 1053, sponsored by Eyman two years ago and backed by many of the aforementioned corporations. It would sabotage our plan of government by allowing one-third of either house of the Legislature to decide the fate of any bill seeking to raise revenue for Washington’s common wealth. I-1053 was itself a clone of I-960 (from 2007), which was based on I-601 (from 1993).

“Initiative 1185, like its predecessors, is a serious threat to the health of our democracy,” said NPI founder Andrew Villeneuve. “Our republic is built on the idea of majority rule with minority rights. Our Constitution explicitly sets the standard for passage of legislation as a majority vote – an interpretation recently affirmed by King County Superior Court Judge Bruce Heller, who concluded that I-1053, I-1185’s predecessor, is unconstitutional on multiple grounds.”

“I-1185 is an illegitimate attempt to amend Article II, Section 22 of our state’s Constitution, which says that a majority vote is the threshold for determining the fate of a bill. I-1185 tries to undemocratically require a higher standard of two-thirds for some bills – specifically, any bills that would raise revenue to fund vital public services like our schools and universities,” Villeneuve added.

“I-1185 is purposely intended to create gridlock in our statehouse, so that a small group of reactionary legislators can wield veto power over important decisions about our state’s budget. That’s wrong.”

“We urge Washingtonians to join us this fall in taking a stand against unchecked corporate greed by voting NO on Initiative 1185.”

“The only reason this measure is going to be on our ballot is because nine corporations and corporate fronts collectively shelled out more than a million dollars to hire mercenary petitioners to collect signatures. They’re betting that they can trick the people of Washington into approving this scheme to shield their tax breaks and tax loopholes from possible repeal. They’ve made it clear they are unwilling to pay their fair share in membership dues to our state, while at the same time disingenuously calling on our state’s leaders to strengthen investment in our schools, universities, roads, and bridges.”

“Here’s what the people of Washington need to know: We can only afford to keep our pubic services strong if we all pitch in, pay our fair share, and work to make our tax system fairer and more equitable. Unfortunately, that’s the last thing these corporations want. We’ve seen their true colors – they’re cheaters who want to rig the system for their own advantage. And they must be stopped.”

Throughout the rest of the summer and into the autumn, NPI’s Permanent Defense will be working with other concerned Washingtonians to build a strong coalition to oppose I-1185 and educate voters as to its true cost and consequences.

An updated list of the top ten contributors to Initiative 1185 is available at Permanent Defense’s Eye on Money page.

The chart shows that the top nine contributors are responsible for a whopping 93% of the total (estimated to be $1,131,704). All of the other contributors – combined – are responsible for only 7%. These figures make it plainly clear that this initiative was bought and paid for by powerful interests, including some of the world’s biggest and most profitable companies.

Who are the top nine?

  • Beer Institute: $400,000
  • BP: $100,000
  • ConocoPhillips: $100,000
  • Tesoro: $100,000
  • Equilon/Shell: $100,000
  • American Beverage Association: $100,000
  • WA Beer & Wine Distributors: $100,000
  • WA Realtors: $25,000
  • WA Restaurant Association: $25,000
  • Everyone Else (multiple entities): $81,703.95

FOR MORE: See State Representative Reuven Carlyle’s blog post about I-1185, The painful irony of using majority rule to eliminate majority rule.

Greedy oil industry once again propping up Tim Eyman’s initiative factory

Statements & AdvisoriesThreat Analysis

More than a month after Tim Eyman announced that he would attempt to qualify a clone of Initiative 1053 for the ballot in 2012 (I-1185), we finally know what it was that prompted him to launch his signature drive: a commitment from oil industry lobbyists to dump money into his campaign coffers.

Reports filed with the Public Disclosure Commission last night show that BP and ConocoPhillips, two of the world’s biggest oil companies, each contributed $100,000 directly to the latest incarnation of Eyman’s “Voters Want More Choices” campaign committee in April, while Tim Eyman revealed in an email to the press this morning that Tesoro and Equilon (Shell) recently sent checks for $100,000 and $50,000 to the Association of Washington Business’ political action committee, which have supposedly been earmarked to help buy signatures for I-1185 (or so Eyman claims).

“Once again, greedy multinational oil companies are underwriting Tim Eyman, lubricating the wheels of his initiative factory with barrels of cash,” said NPI founder Andrew Villeneuve. “Of the $247,285.59 raised by Eyman’s I-1185 campaign committee (“Voters Want More Choices – Save the Two Thirds”) so far, more than eighty percent of the total was contributed by BP and ConocoPhillips ($200,000). And of the $186,035 given to the AWB’s PAC that Eyman claims will ultimately be spent on I-1185, $150,000 (again, eighty plus percent) was contributed by Tesoro and Shell.”

“What are these oil companies after? It’s simple: they want to rig the system to put their own profits ahead of people and planet. They don’t want to be held accountable for the pollution that their refineries and storage tanks generate. Their executives and lobbyists are shameless swindlers who think they can buy our signatures, our votes, and our elected leaders.”

Big oil’s presence in Washington: A bit of background

BP (also known as British Petroleum): BP has the worst safety record in the oil industry, and as of 2010, is responsible for the worst environmental disaster in American history: the Deepwater Horizon gusher. The gusher, which began on April 20th, 2010, when a blowout preventer failed, spilled approximately 4.9 million barrels of oil into the Gulf of Mexico (that’s 779,037,750 liters) until it was capped on July 15th. As a result of the spill, BP became by one account the most despised corporation in America, overtaking the likes of AIG, ExxonMobil, and Citigroup. According to the University of Massachusetts, BP is the twenty fifth largest corporate air polluter in the United States. In 2006, its facilities emitted 4.41 million pounds of toxic gas into the air. BP’s major assets in Washington State include:

  • a refinery at Cherry Point, located at 4519 Grandview Road in Blaine
  • a storage terminal in Seattle, located at 1652 SW Lander Street in Seattle

ConocoPhillips: According to the University of Massachusetts, ConocoPhillips is the eleventh largest corporate air polluter in the United States. In 2006, its facilities emitted 6.39 million pounds of toxic gas into the air. ConocoPhillips’ major assets in Washington State include:

  • a refinery in Ferndale, located at 3901 Unick Road in Ferndale
  • a storage terminal in Renton, located at 2423 Lind Avenue SW in Renton
  • a storage terminal in Spokane, located at 6317 E Sharp Avenue in Spokane

Equilon (Shell): According to the University of Massachusetts, Royal Dutch Shell is the twenty-eighth largest corporate air polluter in the United States. In 2006, its facilities emitted 2.98 million pounds of toxic gas into the air. Shell’s major assets in Washington State include:

  • a refinery in Anacortes, located at 8505 S Texas Road in Anacortes
  • a storage terminal in Seattle, located at 2555 13th Avenue SW in Seattle

Tesoro: According to the University of Massachusetts, Tesoro is the twenty-second largest corporate air polluter in the United States. Its facilities emit 3.74 million pounds of toxic gases into the air every year. Tesoro owns a refinery in Anacortes.

Data originally compiled by NPI’s Permanent Defense for StopGreed.org

“These powerful oil companies already benefit from billions in public subsidies, but that’s not enough for them,” Villeneuve added. “They don’t just want a loophole-filled tax code engineered in their favor. They want to prevent the people of Washington – and the people’s representatives – from requiring them to share in the cost of keeping our air and our water clean. That’s why they dumped hundreds of thousands of dollars into I-1053 two years ago, and that’s why they’re backing I-1185 now. They’re cheaters who have a mind to keep on cheating as long as we let them get away with it.”

In the coming weeks and months, NPI will be working to hold BP, ConocoPhillips, Tesoro, Shell, the Association of Washington Business, and other corporations and corporate lobbies accountable for their involvement in I-1185.

“Washingtonians need to realize that powerful interests are trying to trick us into undermining our own plan of government, which says that our Legislature shall operate democratically, by majority vote,” Villeneuve said.

“I-1185 is a recipe for more legislative gridlock, more underfunded services, and more unemployment. That’s not what our state needs. We urge all Washingtonians to stand with us in fighting to uphold our Constitution and strengthen our state’s common wealth in this crucial election year.”

Tim Eyman, master of shameless self-promotion, accuses Senate Democrats of having “a lack of humility and self awareness”

Rethinking and ReframingThreat Analysis

A question for Washington’s press corps: Does the email sent out by Tim Eyman today about last Friday’s chaos in the Senate sound like it was written by an adult?

Because to us it reads like a series of petty schoolyard taunts and put-downs delivered by a third-grader who absolutely refuses to play nice with others.

There’s no substance or truth in this email. It’s just an entertaining pile of meanness. The funniest bit is the last sentence of the first paragraph: “They humiliated themselves publicly but their own lack of humility and self awareness stops them from feeling embarrassed by it.”

That line describes Tim Eyman’s near-constant behavior to a T!

We wonder: How much self-awareness did Tim Eyman gain after he was forced to admit that he took his own supporters’ donations for personal gain?

Here are some of the lowlights from Tim Eyman’s email:

RE:  Olympia’s Democrats throw a childish hissy-fit on Friday, stomping their feet, spitting venom and bile, holding their breath and turning blue … all because (gasp!) they didn’t have the votes but Republicans did – and they’re STILL pouting about it

In November, if Democrats lose their majorities in the state house and/or state senate and/or lose the governorship, it’ll be because they deserve it based on Friday’s childish hissy-fit.  In multiple floor speeches, Senate leader Lisa Brown could not have been more patronizing, superior, holier-than-thou, and condescending.  Wants-to-replace-congressman-Norm-Dicks-who’s-retiring Derek Kilmer nearly bawled like a little baby girl — quivering lip and all.  Craig Pridemore was a sanctimonious blowhard who’s still “searching for a word.”  They humiliated themselves publicly but their own lack of humility and self awareness stops them from feeling embarrassed by it.

Excerpt number two:

Maybe there’s a point when even 3 Democrats get tired of the arrogant, dictatorial, slave-master method of legislative manipulation employed by Speaker Chopp and Senate leader Brown and Governor Gregoire over the past 8 years.  Maybe there’s a point when even 3 Democrats can’t just whore themselves one more time, trading their vote for a bridge in their district and selling out their principles and constituents.  Maybe there’s a point when even 3 Democrats observe the railroading of minority Republicans on a daily basis for 8 years and think to themselves “we’re not omnipotent gods, let’s give some other reform bills a chance to be considered.”

All night long on Friday, the floor speeches by Democrats were pious, hypocritical, and pathetic.  Condescending lectures about abuse-of-process were pathetic and almost laughable.

And finally:

Chris Gregoire, Lisa Brown, Frank Chopp, and the other slave-master Democrats in Olympia have ruled with an iron fist for too long.  Power corrupts — absolute power corrupts absolutely.  These immature, power-obsessed Democrats are illustrating the need for new leadership in Olympia in November.

Eyman had no comment on the particulars of the Senate Republican budget (also supported by three “Democrats”: Rodney Tom, Tim Sheldon, and Jim Kastama).

Nor did he defend Republicans’ failure to gather public input on their proposal. (Republicans pushed their ill-conceived draconian budget out of a back room and directly onto the Senate floor using a little-known parliamentary maneuver called the Ninth Order. Hours later, they voted to approve it and send it over to the House of Representatives, where it faces a very cold reception.)

Just imagine what could happen to our state if Tim Eyman’s cohorts in the Washington State Senate – including I-1053 cosponsors Don Benton, Janea Holmquist Newbry, and Pam Roach – were in charge year-round, as opposed to one day. They’d be gutting our common wealth and eviscerating vital public services under a cloak of darkness. That’s a future our state simply cannot afford.

Direct democracy turns one hundred in Washington: Time to bring back the *citizen* initiative

Legislation & TestimonyThreat Analysis

One hundred years ago, the people of Washington prevailed upon their legislators to offer an amendment to the state’s Constitution providing for citizen lawmaking through the initiative and the referendum. That amendment, which the people adopted, was meant to give Washingtonians a stronger voice in their own government, complementing the legislative process rather than supplanting it. At many points during the last ten decades, the initiative and referendum have served as a helpful check on the Legislature, paving the way for change that otherwise would have fallen victim to dithering, inaction, or corruption.

Unfortunately, in recent years, the powers of direct democracy have been used more for ill than good, as exemplified by the emergence of Tim Eyman’s initiative factory.

Last week, Permanent Defense celebrated and commemorated its tenth anniversary, and a few days later, in honor of the one hundredth birthday of the initiative and referendum in Washington, Washington State University organized a forum on direct democracy in Olympia to ponder the question of whether the initiative process really still belongs to the people. (In our view, that’s no longer a question: the answer is no, and the evidence backing up that answer is overwhelming).

Eyman, who participated in the forum, sent out an email today attempting to portray himself as a tolerant good-guy looking out for the people’s right to make law at the ballot – ironic given that he has done more than anyone else to co-opt the initiative process on behalf of powerful interests.

His email included this paragraph worth of statistics which caught our attention:

An interesting fact: over the past 13 years, voters have passed into law 21 initiatives. Of those, 11 were liberal ideas and 10 were conservative. Of the 10 conservative initiatives, 7 of them were ours.

Since it is always a bad idea to trust Tim Eyman’s numbers, we went and looked up the electoral history ourselves. As it turns out, Eyman only fudged one number – the total number of initiatives Washington voters have passed into law over the last thirteen elections. It’s actually twenty-three, not twenty-one.

We would agree that eleven of those twenty-three successful initiatives could be described as liberal ideas – they were measures that had progressive backing. We would also agree that ten of those successful initiatives could be described as conservative ideas – they were measures with right wing backing.

However, voters also considered three measures that we don’t think correspond to ideological battle lines: I-696 from 1999 (concerned fishing restrictions), I-713 from 2000 (concerned outlawing certain types of traps), and I-872 from 2004 (concerned with creating a “Top Two” winnowing election).

The former initiative was defeated and the latter two were passed.

Furthermore, there were  fifteen other measures on the ballot over the last thirteen years that did not pass. Most of those were right wing initiatives, as the data below shows. Figures in bold denote the numbers of initiatives that voters passed; figures in roman denote the numbers of initiatives that voters rejected.

Progressive (left-wing) initiatives

  • 1999: None
  • 2000: 728, 732
  • 2001: 773, 775
  • 2002: 790
  • 2003: None
  • 2004: 297, 884
  • 2005: 336, 901
  • 2006: 937
  • 2007: None
  • 2008: 1000, 1029
  • 2009: None
  • 2010: 1098
  • 2011: 1163

Total overall: 14
Total successful: 11

Conservative (right-wing) initiatives

  • 1999: 695
  • 2000: 722, 729, 745
  • 2001: 747
  • 2002: 776
  • 2003: 841
  • 2004: 892
  • 2005: 900, 912, 330
  • 2006: 920, 933
  • 2007: 960
  • 2008: 985
  • 2009: 1033
  • 2010: 1053, 1082, 1100, 1105, 1107
  • 2011: 1125, 1183

Total overall: 22
Total successful: 10

Please note that referendum bills and referendum measures are not included in the above figures – nor are proposed constitutional amendments, which may only be put on the ballot by the Legislature, and tend to be uncontroversial.

Though the data above paints a more complete picture of our recent electoral history than Tim Eyman did in his email, it still leaves out out a lot. Without discussion and analysis, context is lacking. The lists above are analogous to a line score: they tell us what happened, but not how or why.

For instance, one important thing we can’t see from looking at these numbers is that many of the progressive initiatives that voters passed over the last thirteen years were modest in scope and did not attract particularly strong opposition.

Conversely, nearly all the right wing initiatives (both successes and failures) were deliberately written to inflict a great deal of harm to our common wealth or plan of government and, as a consequence, were fought by a series of well-organized no campaigns. Such aggressiveness by conservatives may result in a lower statistical win/loss ratio, but that doesn’t mean it isn’t a profitable strategy.

To the contrary: It pays serious dividends.

That’s because even when they don’t win, conservatives still force progressives to commit substantial resources to defending the state.

And when they are successful, they can cause a lot of damage in one broad stroke, since the ramifications of their schemes are so far-reaching.

When progressives brought direct democracy here a hundred years ago, they hoped future generations would use the initiative and referendum as tools to build Washington into a stronger state. And on many occasions, the initiative has been used to allow the people to vote on ideas to improve quality of life.

But unfortunately, in recent years, the citizen initiative has turned into the corporate initiative. With the help of a rogue’s gallery of wealthy benefactors, Tim Eyman has showed how the process can be abused and hijacked to serve destructive ends: sabotaging our Constitution, crippling our common wealth, eviscerating public services, eroding public trust in government, and discouraging civility.

In between sponsoring his ill-conceived initiatives, Eyman has become a regular visitor to the Capitol Campus in Olympia, appearing at legislative hearings to denounce efforts to return the initiative process to the people and falsely accusing those in favor of reform with wanting to do away with direct democracy altogether. Were the initiative process to be more grassroots-oriented (as the framers of the Seventh Amendment intended it to be), it would complicate Eyman’s operation, which cannot run without six figure checks from wealthy benefactors.

It should come as no surprise that Tim Eyman’s unrelenting, knee-jerk opposition to initiative reform has more to do with self-interest than principles.

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Permanent Defense works to protect Washington by building a first line of defense against threats to the common wealth and Constitution of the Evergreen State — like Tim Eyman's initiative factory. Learn more.

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