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
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