Category Archives: In the Courts

Supreme Court affirms ruling that Tim Eyman’s I-1366 is unconstitutional in its entirety

In the Courts

This morning, the Washington State Supreme Court ruled unanimously that Tim Eyman’s I-1366 is unconstitutional, affirming King County Superior Court Judge William Downing’s January ruling striking down the initiative as null and void in its entirety. Six justices signed the majority opinion, authored by Chief Justice Barbara Madsen, while the remaining three justices signed a concurring opinion authored by Associate Justice Steven González.

No further appeal is possible, so today’s verdict means that I-1366 is dead.

I-1366, narrowly approved by a fewer than twenty percent of the state’s registered voters last November, attempted to coerce legislators into passing a constitutional amendment to permanently require a two-thirds vote to raise revenue.

In the event lawmakers refused to vote for Eyman’s desired amendment by April 15th, 2016, the sales tax would have been cut by about 15%, depriving Washington’s public services of a whopping $8 billion over six years.

However, I-1366’s sales tax cut was never implemented because the initiative was found to be unconstitutional by Judge Downing. With that decision now affirmed, I-1366 is no longer a threat to Washington’s people or future.

“We are elated by today’s ruling,” said Northwest Progressive Institute founder and Executive Director Andrew Villeneuve, who has been organizing opposition to Tim Eyman initiatives for more than fourteen years.

“This is truly a great moment for our beloved state. Today, one of the most destructive Eyman initiatives of all time has been finally sent to the graveyard of Washington politics by a united Supreme Court. Our popularly-elected Justices stood up for us and upheld our Constitution, safeguarding our tradition of majority rule and putting a stop to Tim Eyman’s outrageous abuse of the initiative power.”

“All of us at NPI extend our deepest thanks to Paul Lawrence and the team at Pacifica Law Group that represented our courageous and dedicated friends Reuven Carlyle, David Frockt, Paul Bell, Eden Mack, Tony Lee, Angela Bartels, Jerry Reilly, and the League of Women Voters of Washington in this important case. They were outstanding, and they brought the best case we believe could possibly have been brought against this awful initiative, all but guaranteeing it would be thrown out.”

“We look forward to celebrating this victory with our tireless supporters, who have kept us going through thick and thin.”

An updated version of Tim Eyman’s Failure Chart, documenting the long list of Eyman initiatives that have either failed to make the ballot, been defeated by voters, or struck down as unconstitutional may be viewed here.

Statement on Judge Downing’s decision in Lee v. State

In the Courts

This morning, King County Judge William Downing ruled that Tim Eyman’s Initiative 1366 is void in its entirety because it violates multiple provisions of the Washington State Constitution.

Northwest Progressive Institute and Permanent Defense founder Andrew Villeneuve released the following statement in response to the decision.

“We’re thrilled with today’s decision by Judge Downing striking down Tim Eyman’s unconstitutional I-1366,” said Villeneuve. “Judge Downing correctly concluded that I-1366 could not stand because it violates Articles II and XXIII of our Constitution, as we have said all along. Our courts have a responsibility to protect our plan of government from destructive, malicious schemes like Initiative 1366. This decision is a landmark victory for majority rule and for the rule of law.”

“We extend our profound thanks to Paul Lawrence at the team at Pacifica Law Group for ably representing plaintiffs Tony Lee, Angela Bartels, Eden Mack, Reuven Carlyle, David Frockt, Paul Bell, Jerry Reilly, and the League of Women Voters in this case.”

“The legal challenge against Initiative 1366 isn’t over yet. We expect the state and sponsors to appeal this ruling immediately to the Washington State Supreme Court. We are confident that Judge Downing’s well-reasoned decision will be upheld on appeal by the nine justices of our highest court.”

Bravado won’t stop Tim Eyman’s I-1366 from being struck down as unconstitutional

In the Courts

This morning, King County Superior Court Judge William Downing heard oral arguments in Tony Lee, et al. v. State of Washington, et al., the legal challenge to Tim Eyman’s Initiative 1366. I-1366 is Eyman’s most recent and most destructive initiative yet; it was narrowly passed by voters in last November’s general election, which set a record for the lowest general election turnout (38.45%) since the state began its voter registration system in the 1930s.

I-1366 is an outrageous attempt to coerce the Legislature into sabotaging Washington’s tradition of passing bills and budgets by majority rule. It would wipe out $8 billion in sales tax revenue over the next six years unless the Legislature capitulates to Eyman’s wishes and passes a constitutional amendment requiring a two-thirds vote to raise or recover any revenue going forward, which would have the effect of locking Washington’s broken, regressive tax system into place permanently.

In late November, at the time the 2015 general election was certified, I-1366 was challenged in court by the League of Women Voters of Washington, State Senators Reuven Carlyle and David Frockt, Paramount Duty co-organizer Eden Mack, Gerry Reilly, Paul Bell, Tony Lee, and Angela Bartels. Plaintiffs allege that I-1366 is unconstitutional because it contains multiple subjects, runs afoul of the Constitution’s amendment process, exceeds the scope of the people’s initiative power, and improperly restricts the lawmaking power of the 2016 Legislature.

“We strongly agree with the plaintiffs in Lee v. State that Tim Eyman’s I-1366 egregiously violates our plan of government, which has served us well since statehood,” said Northwest Progressive Institute and Permanent Defense founder Andrew Villeneuve, who has been organizing opposition to Tim Eyman’s initiative factory for nearly fourteen years.

“Our state’s founders did their best to come up with a plan of government for Washington that struck a balance between majority rule with minority rights. Sadly, Tim Eyman is so obsessed with upsetting this balance that he has resorted to extortion. He has a knack for crafting deceptive initiatives that self-mask their harm, which makes mounting opposition campaigns in the court of public opinion very difficult. We worked hard against I-1366 last autumn, and while we weren’t able to defeat it then, we were successful in bolstering the no vote in the late ballots.”

“We’re very grateful to Paul Lawrence, Sarah Washburn, and Kymberly Evanson at Pacifica Law Group for taking on this case and carrying on the fight against this awful initiative. Paul was very impressive and on point during oral arguments in court this morning. He thoroughly refuted the defendants’ disingenuous arguments.”

“Tim Eyman’s incessant boasting and continued predictions of total victory have us wondering if he was at at the same hearing that we were. Bravado isn’t going to stop I-1366 from being struck down as unconstitutional.”

“We’re looking forward to reading Judge Downing’s ruling on Thursday. Regardless of what it says, we will continue to fight to uphold our Constitution and our cherished plan of majority rule, so that our state government continues to function the way our founders intended it to.”

Statement on Supreme Court’s ruling in Huff v. Wyman

In the CourtsStatements & AdvisoriesThreat Analysis

Late this morning, the Supreme Court released its ruling in Huff v. Wyman, the preelection legal challenge to Tim Eyman’s I-1366, which sought I-1366’s removal from the November 2015 general election ballot on the basis that 1366 was beyond the scope of the people’s initiative power. The Court decided on September 4th, 2015, that plaintiffs, led by King County Elections Director Sherril Huff and Thurston County Auditor Mary Hall, had not made the clear showing necessary for injunctive relief, but retained the case for a later ruling on the merits. That explanatory ruling was released today.

“We thank the Supreme Court for the timely decision it released today explaining why it did not grant an injunction removing Tim Eyman’s I-1366 from the ballot last summer,” said Northwest Progressive Institute founder and executive director Andrew Villeneuve, who has been organizing opposition to Eyman’s initiatives since February of 2002.

“We agree with King County Superior Court Judge Dean Lum that the fundamental and overriding purpose of I-1366 is to coerce the Legislature, and particularly Democratic lawmakers, into invoking the constitutional amendment process spelled out in Article XXIII, something that an initiative simply cannot do.”

“Today’s ruling from the Supreme Court did not definitively answer the question of whether I-1366 is beyond the scope of the initiative power. We believe this is a question that needs to be answered, and we hope it will be addressed in the forthcoming postelection legal challenge. As we said on Election Night, we remain committed to defeating this incredibly destructive hostage-taking initiative, so that our state’s public services and tradition of majority rule are protected. We will be fully supporting the new challenge to I-1366 that will be filed in the days to come. We urge the courts to swiftly take up this matter and uphold our state Constitution by striking down Tim Eyman’s I-1366 in its entirety.”

Statement on the Supreme Court’s order in Huff v. Wyman

Eye on Money: DevelopmentsFrom the Campaign TrailIn the Courts

This morning, the Washington State Supreme Court rendered a preliminary verdict in Huff v. Wyman, the scope challenge to Tim Eyman’s I-1366. The Court has ruled unanimously that plaintiffs’ request for an injunction should be denied, which we understand means that I-1366 will appear on the November 2015 ballot.

“While we are disappointed in this order, this outcome was not unexpected, and we have continued all summer to lay the groundwork needed for an autumn campaign in partnership with NO on I-1366 coalition staff,” said Northwest Progressive Institute founder Andrew Villeneuve, who posted a first read of the Court’s order to NPI’s principal publication, the Cascadia Advocate.

(The Cascadia Advocate is a sister project of Permanent Defense).

“I-1366 is the most destructive initiative Tim Eyman has ever proposed,” Villeneuve said. “It would wipe out $8 billion in sales tax revenue over six years unless the Legislature agrees to a constitutional change that would sabotage the Constitution’s majority vote requirement for passage of bills — which dates back to statehood.”

“I-1366 represents an attempt by Tim Eyman to blackmail a significant number of our state’s lawmakers into voting against their values by taking Washington’s youth as hostages. I-1366 is an outrageous abuse of the people’s initiative power, and we are committed to mounting a strong campaign to defeat it in November. We’re ready to bring Washingtonians together to uphold our Constitution and protect the values our state was founded on.”

The growing coalition against I-1366 now includes AARP Washington State, OneAmerica Votes, the Mainstream Republicans of Washington, Washington State Democratic Party, League of Women Voters of Washington, NAMI Washington, and dozens more. An updated list is available from the NO on I-1366 coalition.

In a separate development, Jerry Cornfield of The Herald reported last night that state attorneys have filed a motion in Snohomish County Superior Court seeking to compel Eyman to cooperate with the Public Disclosure Commission’s stalled, long-running investigation into Eyman’s I-517, the 2013 “initiative on initiatives” that Washington voters overwhelmingly defeated. The investigation stems from a complaint filed by activist Sherry Bockwinkel in August of 2012.

“We are pleased to see that Attorney General Bob Ferguson’s office is assisting the PDC with its investigation into Tim Eyman and his associates’ wrongdoing,” said Villeneuve. “This complaint is over three years old and should have been resolved long ago, but it’s evident that Tim Eyman and his associates have not been fully cooperating with investigators — despite what they told The Herald. Eyman has a long history of flouting our public disclosure law. It heartens us to see that the PDC hasn’t given up on this case and is pursuing it with the help of our state attorneys. We look forward to seeing the investigation completed.”

Statement on Judge Dean Lum’s decision in Huff v. Wyman

In the Courts

This afternoon, King County Superior Court Judge Dean Lum handed down his opinion in the matter of Huff v. Wyman, the legal challenge seeking to remove Tim Eyman’s I-1366 from the November 2015 statewide ballot on the grounds that it exceeds the scope of the people’s initiative power. While the judge declined to grant plaintiffs’ motion for an injunction barring I-1366 from the ballot (see this analysis from the Cascadia Advocate), he did find I-1366 beyond the scope.

Northwest Progressive Institute founder and executive director Andrew Villeneuve released the following statement in response to the decision.

“We are heartened by Judge Lum’s unequivocal finding that Tim Eyman’s I-1366 is beyond the scope of the people’s initiative power. As we have said all along, I-1366 is a hostage-taking scheme intended to coerce our elected representatives into sabotaging the majority vote requirement of our state Constitution, upsetting our plan of government’s carefully crafted balance between majority rule and minority rights.”

“I-1366 goes well beyond what an initiative is constitutionally allowed to be. As Judge Lum recognized, it is a malicious attempt to set in motion a constitutional amendment by the use of blackmail.”

“Allowing I-1366 to go to the ballot would set a dangerous ‘anything goes’ precedent. Though Judge Lum did not grant the plaintiffs’ motion for an injunction barring I-1366 from appearing on the ballot, we are gratified that he has rendered an opinion on the merits of the plaintiffs’ scope challenge. This case now moves to the Supreme Court, and we encourage the Court to uphold our Constitution and stop Tim Eyman’s abuse of the people’s initiative power by removing I-1366 from the ballot.”

NPI’s Permanent Defense applauds legal challenge to Tim Eyman’s I-1366

In the Courts

This morning, a group of plaintiffs, including King County Elections Director Sherril Huff, Thurston County Auditor Mary Hall, and Democratic lawmakers David Frockt and Reuven Carlyle filed a lawsuit seeking to block Tim Eyman’s incredibly destructive I-1366 from the ballot because it exceeds the scope of the initiative power as set forth in the Constitution of Washington State.

Northwest Progressive Institute founder Andrew Villeneuve had the following to say in response to the commencement of legal proceedings by the plaintiffs, represented by Pacifica Law Group’s Paul Lawrence, Kymberly Evanson, and Sarah Washburn.

“We applaud and fully support the decision by our elected representatives and fellow activists to go to court to have Tim Eyman’s I-1366 blocked from placement on the November 2015 ballot,” said Villeneuve.

“In our view, I-1366 clearly exceeds the scope of the people’s initiative power. It is an attempt to do an end-run around Article XXIII of our state Constitution, which explicitly says that constitutional amendments must originate in the Legislature and receive a two-thirds vote of each house to pass.”

“Tim Eyman has now discovered for himself that two-thirds is a very high bar… and as he doesn’t have the support in either house for an amendment to overturn the Supreme Court’s League of Education Voters decision, he’s resorted to blackmail with I-1366.”

“But once again, he’s run afoul of our Constitution. Initiatives can be used to make or amend ordinary laws. The initiative power can’t be used to amend the Constitution. It is the Legislature’s prerogative to propose constitutional amendments to the people. Eyman is infringing on the House and Senate’s constitutional role by trying to coerce the Legislature into exercising its prerogative by threatening to wipe out $8 billion in sales tax revenue over six years if they don’t. Because I-1366 is outside the scope of the initiative power, our courts should remove it from the ballot and spare us all the time and expense of having to vote on Eyman’s illegitimate, illegal hostage-taking scheme.”

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.

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