Today, King County Superior Court Judge Marshall Ferguson issued a ruling in the I-976 legal challenge on the parties’ cross motions for summary judgment, just hours before Tim Eyman confirmed that he’s running for Governor as a Republican during a rambling, Trump-like speech in Yakima. NPI founder Andrew Villeneuve offered the following observations in response to these developments.
On the court ruling:
“NPI disagrees with Judge Marshall Ferguson’s ruling on the parties’ cross motions for summary judgment in the I-976 legal challenge. While we deeply appreciate the time that Judge Ferguson took to consider the issues in this complex case, including an entire day of oral argument, we believe the conclusions he reached are erroneous. We concur with the plaintiffs that I-976 suffers from multiple constitutional defects, including violations of the single subject rule and the subject-in-title rule. I-976 is not a well-drafted initiative. We look forward to seeing this case reach the Washington State Supreme Court for a final determination regarding its constitutionality, or lack thereof.”
“Now that Tim Eyman is a candidate for high office instead of just a pitchman for destructive initiatives, he looks and sounds even more like his idol, Donald Trump. Trump is a master of media manipulation and projection: he projects his own faults onto his opponents every chance that he gets. That’s exactly what Tim Eyman did during his speech in Yakima while speaking to a friendly audience of followers, including Republican precinct committee officers. Both Tim Eyman and Donald Trump are egotistical, narcissistic sociopaths who revel in their ability to exploit and dupe people. Neither Trump nor Eyman is fit to serve in any public office at any level of government.”
This morning, King County Superior Court Judge Marshall Ferguson is once again hearing oral arguments in Garfield County et al v. State of Washington et al, the legal challenge to Tim Eyman’s Initiative 976, which the Garfield County Transportation Authority and other plaintiffs (including intervenor plaintiffs) contend is unconstitutional.
Initiative 976 is the destructive and deceptive measure sponsored by Eyman that Washington voters saw on their ballots last autumn, which falsely advertised the prospect of “thirty dollar car tabs” in its ballot title, with no consequences mentioned whatsoever.
I-976 was adopted with the support of a submajority of voters; 23.44% of Washingtonians registered to vote voted yes on I-976, while the remainder did not vote or voted no.
Turnout in the 2019 Washington State general election ended up at 45.19%, it was the seventh worst general election turnout in state history.
Like bills, initiatives proposed to the people must comply with all of the provisions of the Washington State Constitution. The plaintiffs in this case allege that Initiative 976 has eleven different constitutional defects.
Some of the alleged defects, if proven by the plaintiffs, would result in the invalidation of the initiative in its entirety.
For example, when a measure runs afoul of the Constitution’s anti-logrolling provision, severability does not apply and all provisions get voided.
In the words of the plaintiffs:
“I-976 had a deceptive ballot title that mislead the voters. It lied about ensuring car tabs would be $30. It combined multiple unrelated subjects to cobble together enough support to get the measure passed, a classic unconstitutional log-rolling guise. I-976 fails to set forth all statutes it amends rendering its application confusing.”
“It intrudes on local home rule powers of taxation for local purposes, seeks to over-turn local election results, and requires diversion of locally approved taxes. I-976 impairs contract obligations by seeking to eliminate Burien’s vehicle license fee that have been pledged to secure its bonds. Each of these matters are constitutional violations requiring that I-976 be struck down,” the plaintiffs’ motion for summary judgment concludes.
The plaintiffs are asking that Judge Ferguson find I-976 unconstitutional and strike it down; the defendants are asking that I-976 be upheld.
The initiative’s defense, in accordance with state law, is the responsibility of Attorney General Bob Ferguson, because it was passed by voters.
However, several parties have intervened in the case, so there will be many entities making arguments before Judge Ferguson at today’s hearing.
Q&A: Background on the I-976 legal challenge
What is the challenge about and why was it brought?
This case was brought to protect Washington State from the destructive ramifications that implementation of Initiative 976 would entail, and to defend the Washington State Constitution from I-976. I-976 threatens essential funding for multimodal transportation projects at three levels: state, regional, and local.
At the outset of the case, the plaintiffs had two objectives:
To temporarily prevent Initiative 976 from taking effect on December 5th, 2019 (as scheduled) and immediately depriving cities and transit agencies all over Washington State from revenue needed to ensure freedom of mobility
To permanently prevent Initiative 976 from taking effect by obtaining a declaratory judgment finding it unconstitutional on one or more grounds.
The plaintiffs succeeded in securing their first objective last year, when they persuaded Judge Marshall Ferguson to grant an injunction barring the implementation and enforcement of I-976, an order that was subsequently upheld on appeal. The plaintiffs are now asking Judge Ferguson to issue a declaratory judgment finding I-976 unconstitutional.
GARFIELD COUNTY TRANSPORTATION AUTHORITY; KING COUNTY; CITY OF SEATTLE; WASHINGTON STATE TRANSIT ASSOCIATION; ASSOCIATION OF WASHINGTON CITIES; PORT OF SEATTLE; INTERCITY TRANSIT; AMALGAMATED TRANSIT UNION LEGISLATIVE COUNCIL OF WASHINGTON; and MICHAEL ROGERS,
WASHINGTON ADAPT; TRANSIT RIDERS UNION; and CLIMATE SOLUTIONS,
STATE OF WASHINGTON,
CLINT DIDIER; PERMANENT OFFENSE, TIMOTHY D. EYMAN, MICHAEL FAGAN; JACK FAGAN; and PIERCE COUNTY,
What happens after oral argument?
Judge Ferguson will consider each party’s arguments and rule on the cross motions for summary judgment. Whichever way he rules, his decision will almost certainly be appealed to the Washington State Supreme Court. A common adage among lawyers is that ninety percent of a case comes down to written briefs. So while today’s oral argument provides an opportunity for the judge to hear from the parties’ attorneys, the judge has already seen hundreds of pages of arguments and supporting documentation from the parties. NPI has copies of these materials and can provide them upon request.
When will the judge rule?
Judge Ferguson indicated this morning in his welcoming remarks to counsel and to the public that he plans to rule early next week, but cautioned he may choose to take more time to develop his ruling. He has set aside all of today for oral argument.
Didn’t the State Supreme Court already issue a ruling in this case?
Yes, but that ruling only concerned the injunction that Judge Ferguson ordered temporarily barring I-976 from going into effect. Attorney General Bob Ferguson requested that the Supreme Court overturn the injunction; a majority of the justices declined that request. I-976 will soon return before the Court for a final determination of its constitutionality. If the justices agree that the plaintiffs have proved I-976 unconstitutional beyond a reasonable doubt, it will not go into effect.
This isn’t the first Eyman initiative to face a legal challenge. How many Tim Eyman initiatives have previously been struck down as unconstitutional?
Seven if you don’t count Initiative 776, which was partially neutralized in Pierce County II.
Initiative 695 (1999; vehicle fees)
Initiative 722 (2000; property taxes)
Initiative 747 (2001; property taxes)
Initiatives 960, 1053, 1185 (2007, 2010, 2012; thresholds for passage of revenue bills)
Initiative 1366 (2015; attempted extortion to re-implement I-960/I-1053/I-1185)
This afternoon, the Washington State Supreme Court upheld King County Superior Court Judge Marshall Ferguson’s ruling that Tim Eyman’s I-976 shall be barred from being implemented until its constitutionality (or lack thereof) can be determined.
I-976 is Eyman’s most recent measure, which seeks to wipe out billions of dollars in bipartisan, voter-approved transportation investments.
Attorney General Bob Ferguson’s office had filed an emergency appeal seeking to have the injunction overturned. The Supreme Court has denied that motion.
Northwest Progressive Institute founder and Executive Director Andrew Villeneuve thanked the Supreme Court for sustaining the injunction.
“Thanks to the Supreme Court’s decision today, Tim Eyman’s scheme to destroy multimodal transportation infrastructure in the State of Washington will not go into effect on December 5th,” said Villeneuve.
“Instead, we Washingtonians will continue to pool our resources to ensure that we can build and maintain the roads, railways, bus routes, sidewalks, and bike paths that our communities need. Revenue from vehicle fees Eyman wants to repeal will either be held in escrow pending the Supreme Court’s final verdict on I-976, or provided to local governments like the City of Seattle and King County, which are plaintiffs in this case.”
In recent days, Tim Eyman has repeatedly issued exhortations calling upon Washingtonians to join him in breaking the law and not paying their vehicle fees.
These exhortations are irresponsible and do not deserve to be given airtime, ink, or pixels.
“As citizens, we have a mutual responsibility to each other to pay our dues to our state and country,” said Villeneuve. “It is patriotic to be a taxpayer and pay one’s dues.”
“If there were no taxes, there would be no public services, and if there were no public services, there would be no Washington State and no United States of America. It is what we do together as a people for each other that makes us strong. None of us can afford to repair a bridge or run a bus route with a vehicle fee refund. But together, we can empower our neighbors like Michael Rogers, a plaintiff in the I-976 case, to get where they want to go, even if they cannot drive or do not wish to drive.”
“Tim Eyman has framed I-976 as being about car tabs, but in reality, I-976 is an assault on freedom of mobility, and should be characterized as such in stories about the measure. As Eyman has admitted when speaking to friendly audiences, his objective with I-976 is to wipe out funding for transportation modes other than auto travel, because he doesn’t believe in them. Gas taxes have also been increased in recent years, but Eyman didn’t target those with I-976, because gas tax revenues are required by the Constitution to be used for highway purposes… the one transportation mode that Eyman supports.”
“‘Thirty dollar tabs’ is a marketing slogan… a dishonest slogan. As Eyman has admitted, even if I-976 goes into effect, no one in Washington will pay thirty dollars to renew their vehicle’s registration, because the initiative doesn’t actually cap fees at thirty dollars. That’s not a problem for Eyman, because the truth is irrelevant to him. As long as multimodal transportation infrastructure gets defunded, Eyman will have achieved his aim.”
“Right now, that’s not happening due to the injunction against I-976. Today’s decision may be bad news for Eyman, but it’s good news for Washington communities.”
This morning, King County Superior Court Judge Marshall Ferguson ruled that Tim Eyman’s I-976 shall be barred from being implemented until its constitutionality (or lack thereof) can be determined.
I-976 is Eyman’s most recent measure, which seeks to wipe out billions of dollars in bipartisan, voter-approved transportation investments.
“Plaintiffs have a well-grounded fear of immediate invasion of the rights afforded by the Washington Constitution due to implementation of I-976. Implementation on December 5, 2019 of an unconstitutionally misleading statewide initiative, even if approved by a majority of voters, would be an invasion per se of Plaintiffs’ rights under the Washington Constitution,” Judge Ferguson wrote in his decision.
“Put simply, enforcement of what is likely an unconstitutional law would invade Plaintiffs’ constitutional rights.”
Northwest Progressive Institute founder and Executive Director Andrew Villeneuve, who helped organize the campaign against I-976, praised the decision.
“Judge Marshall Ferguson’s order staying Tim Eyman’s I-976 is great news for Washington State,” said Villeneuve. “While this will not be the final word from our courts on I-976, it is encouraging that Judge Ferguson found that the plaintiffs were likely to prevail in their arguments against I-976.”
“I-976 is riddled with constitutional defects and was presented to voters for their consideration with a dishonest ballot title, which is unacceptable.
“No law, whether originating in the Legislature as a bill or originating from the people as an initiative, may violate our plan of government.”
“This is a bedrock principle of our democracy. After twenty years of sponsoring initiatives, you might think Tim Eyman would have learned by now how to write a constitutional initiative, but the truth is that he doesn’t seem to care whether his measures withstand constitutional scrutiny or not.”
“He certainly pretends to care, and he expresses anger when his initiatives are challenged. But someone who really did care wouldn’t throw money at an initiative until they were sure that they had dotted all of their i’s and crossed all of their t’s. Tim Eyman didn’t. Instead, he overreached, like has has so many times in the past.”
“Judge Ferguson has a duty and an obligation to defend the Constitution of Washington State and today he honored that obligation by staying I-976. As a result, our communities will not begin to suffer the grave harms of I-976’s implementation next week.”
“Our team at NPI is incredibly grateful to Judge Ferguson for acting swiftly and thoughtfully to protect our Constitution and our commonwealth from the threat of I-976. We will certainly be giving thanks today and tomorrow for the good sense, judgment, and wisdom that he has shown in reaching this decision.”
Tim Eyman’s Election Night euphoria has predictably dissolved into whining and complaining over the reality that local governments aren’t going to allow his incredibly destructive I-976 to take effect next month without a constitutional challenge. With the court case now underway, Eyman is anxiously trying to spin I-976 as constitutional.
Eyman argues that since I-776 was partially upheld by the Supreme Court in Pierce County v. State in 2003, I-976 must be constitutional, too.
(I-776 was Eyman’s 2002 initiative that was aimed at slashing vehicle fees. It narrowly passed.)
But this is yet another bogus Eyman argument. It comes from someone with a long track record of losing in the courts.
Every Tim Eyman initiative since 1999 that has gotten past the voters has been challenged successfully on constitutional grounds except for I-900 (2005).
The list of challenged Eyman initiatives is as follows:
I-695 from 2000: Struck down because it violated Article II, Section 19.
If you compare I-776 to I-976, you can see they are very different. I-976 targets fees that didn’t even exist around the turn of the century.
A total of seventeen years elapsed between voters’ consideration of I-776 and I-976.
In that time, the Legislature modified a significant number of RCWs pertaining to transportation funding.
For example, working together with three different governors, the Legislature passed:
the nickel transportation package (in 2003);
the 2005 Transportation package (in 2005);
legislation giving local governments more revenue authority for transportation (in 2020);
the Connecting Washington transportation package (in 2015).
The 2005 package authorized vehicle weight fees as a funding source for multimodal transportation projects at the state level, while the 2015 package gave Sound Transit the authority to seek voter approval for a higher motor vehicle excise tax and empowered transportation benefit districts to raise more money from vehicle fees.
In 2015, the Legislature also authorized counties and cities to assume transportation benefit districts; see Chapter 36.74 RCW.
The plaintiffs in Garfield County et al v. State allege that I-976 has constitutional defects. We agree. Tim Eyman can claim we’re wrong till he’s red in the face, but history is not on his side. The courts will decide who’s right, not Eyman or his new attorney Richard Sanders, who voters decided to remove from the Supreme Court several years ago.
It is essential to remember that the schemes that Eyman has come up with have consistently been found to be unconstitutional.
If Eyman were interested in writing measures that did not have constitutional defects, he would take much greater care when drafting measures like I-976. But he doesn’t.
And others active in right wing politics in Washington State have noticed.
“We feel that we need to have a product that has the best chance of surviving the inevitable court challenge that will follow,” said “Liberty State” organizers Mike McKee and Cary Condotta in a July 2019 message to their fans explaining why their group was choosing not to continue working with Tim Eyman. (For background, see this post.)
For Eyman, there is a big upside to seeing one of his measures get struck down in court: he can go back to his followers and argue that he needs more money for another initiative that does the same thing, or a similar thing. Eyman profits regardless of whether his measures are successful. He knows how to run a good scam.
But Attorney General Bob Ferguson’s office is working tirelessly to hold him accountable for violating our public disclosure laws. That could ruin Eyman’s future plans to continue launching attacks on Washington’s communities. Is it any wonder, then, that Eyman furiously denounces the Attorney General as “Fascist Fergie”?
Northwest Progressive Institute founder and Executive Director Andrew Villeneuve welcomed the filing of the legal challenge and wished the plaintiffs well.
“The fight against I-976 continues in a different arena with the filing of this necessary, timely legal challenge,” said Villeneuve.
“Tim Eyman intended for Initiative 976 to be a wrecking ball aimed at our multimodal transportation investments, which he ideologically opposes. If I-976 is ever implemented, that is certainly what it would be. But there’s a good chance it will never go into effect, because the measure itself is a blazing dumpster fire.”
“Like previous Eyman initiatives, I-976 is loaded with constitutional defects. For instance, it violates the single subject rule as well as the subject in title rule. The NPI team agrees with the plaintiffs that I-976 simply cannot withstand constitutional scrutiny. The courts should protect our plan of government and toss I-976 in the scrap heap of Washington State electoral history where it belongs. Then, our Legislature should promptly act to address the concerns that many Washingtonians have about our reliance on a needlessly complicated, multi-layered system of vehicle fees to fund the essential transportation improvements our communities need.”
“The Legislature must also make an initiative reform a top priority. Ridiculous abuses that open the door to deception, like ballot title shopping, need to be ended. A more robust process adopted for developing ballot titles that seeks and utilizes community input must be instituted as well. The title is the only language voters see on their ballots, so its content is of vital importance.”
“It’s irresponsible and immoral to ask voters to decide the fate of a proposed law using dishonest, poorly phrased, one-sided language. If voters are to pass an informed judgment on an initiative, the question they are asked must accurately represent what is being proposed and summarize the potential impacts. That was not the case with I-976. Loaded questions will always yield loaded answers.”
This morning, Tim Eyman announced in an email to his followers that his marriage is ending and he intends to file for bankruptcy. The disgraced initiative promoter blamed Attorney General Bob Ferguson for his personal problems, characterizing the state’s attempt to hold him accountable for his lawbreaking as “the most intense, soul-crushing government litigation against a private individual in state history.”
Northwest Progressive Institute Founder and Executive Director Andrew Villeneuve — who has almost seventeen years of experience organizing opposition to Eyman’s initiatives — noted that Eyman’s problems are all self-inflicted.
“Tim Eyman has been in politics long enough to understand our system of public disclosure, which was created when the people of Washington approved Initiative 276 back in the 1970s,” said Villeneuve.
“Even after getting into trouble early on in his career as a purveyor of destructive initiatives, he has continued to willfully and repeatedly violate our public disclosure laws… including in 2012, when he used money donated for one initiative to qualify another without asking his donors’ permission or even telling them what he was doing.”
“And he doesn’t appear to feel any remorse over this. He’s only sorry that he got caught.”
“It’s bizarre that Eyman is complaining about this case taking so long, because his opposition is equally frustrated that we haven’t gotten to the trial yet. What he is not telling his followers or the press is that his actions are the reason for the long timeframe. It was his choice to make stonewalling in the extreme his legal defense strategy.”
“Read the many briefs filed by the state’s attorneys over the past few years, which describe in excruciating detail their repeated and patient efforts to obtain documents from Eyman. Getting Eyman to turn over any records at all has been extremely difficult, both before and since the lawsuit was filed. To compel Eyman’s cooperation, the courts have held him in contempt, but even that hasn’t prompted Eyman and his co-defendants to produce records in a timely fashion.”
“Eyman has chosen to resist accountability at all costs. Today, it’s apparent those costs are very high and very painful indeed. Eyman would like us all to feel sorry for him, but he still won’t accept responsibility for his own behavior.”
“Thankfully, Attorney General Ferguson is committed to seeing this case through despite Eyman’s stonewalling, and we appreciated that. Justice needs to be served.”
Eyman was held in contempt of court over seven months ago for failing to turn over records sought by Attorney General Bob Ferguson’s office in the main State of Washington v. Eyman case. A total of four campaign finance enforcement cases were filed by Ferguson’s office in 2016 and 2017 against Eyman and his associates. Three were filed two years ago in September of 2016; a fourth was filed in March of 2017.
The main State of Washington v. Eyman case concerns the initiative promoter’s illegal acts in support of his “initiative on initiative” (I-517) which voters overwhelmingly rejected five years ago. Eyman qualified I-517 in 2012 through a stealth signature drive with money he transferred from one of his other campaign committees through an out of state entity back to himself and his associates.
Donors to that other campaign did not know that Eyman was using their money to qualify an entirely different initiative.
“State law keeps tightening like a vice on Washington’s most prolific initiative promoter, Tim Eyman,” The Olympian noted. “This vice should tighten. Another quarter-turn or more is needed to force out the truth.”
The editorial goes on to point out that there’s little difference between giving money to one of Eyman’s political committees and giving money to his legal defense fund.
“In Eyman’s solicitations, he’s arguing that his future as an anti-tax initiative promoter is at stake. Which sounds a lot like a campaign solicitation,” the editorial board noted. “Indeed, Eyman has bills to pay. One one hand, he is pushing initiatives. But he could face fines of more than $2 million if AG [Attorney General Bob] Ferguson is successful with his lawsuit alleging wrongdoing.”
“It’s hard to believe that anyone who donates to Eyman’s Go Fund Me account for legal costs are different from those who donate to his political efforts,” the board added. “Absent court orders for Eyman to publicly release the identity of his defense-fund donors, we’ll never know which special-interest carve-outs or protections in future Eyman initiatives are not pay backs for the help they give in 2018 or 2019 to keep Eyman solvent and in the initiative business.”
While state law requires that the identities of donors to campaigns be disclosed, Eyman is assuring prospective donors to his legal defense fund that they will remain anonymous.
“I’m asking everyone to match or exceed the amount you’ve given in past years (it’ll be anonymous and unreported since it’s going towards my legal bills),” Eyman says at the end of one of his fundraising letters.
“We wholeheartedly agree with The Olympian that state law should be changed to regulate legal defense funds established by individuals or entities facing allegations that they violated our campaign finance laws,” said Northwest Progressive Institute founder and Executive Director Andrew Villeneuve, who has been organizing opposition to Eyman’s initiative factory for over sixteen years.
“The status quo is untenable. Perhaps our state needs an independent inspector general with the authority to examine bank statements and other records to ensure that funds raised for legal defense are actually being spent on legal defense.”
Eyman is currently fundraising both for his legal defense fund and for his next con, Initiative 976. On one website, he asks his followers to give to the former; on another website, he asks his followers to give to the latter. And he’s using his mailing list to pitch each. It matters not that the money is ostensibly for different purposes and being raised through separate funnels, for ultimately it ends up in a bank account that Eyman controls.
Because Eyman pays himself out of his campaign coffers (and even gets kickbacks from his main vendor, Citizen Solutions), he’s always fundraising for himself, no matter what entity he’s asking people to make a check out to.
This isn’t the first time Eyman has fundraised in tandem like this.
After Eyman’s solicitations became public knowledge, founding NPI boardmember Steve Zemke, who remains involved today with NPI as a senior advisor, called on the Public Disclosure Commission to investigate Eyman’s personal fundraising.
“Because they wouldn’t be reported, the public would not know how much or who gave money to support Tim Eyman to allow him to donate his services to campaigns. Are there secret big donors supporting his campaigns like I-807 who do not want the public to know who they are or how much they are willing to give to allow Eyman to do ‘free’ consulting?”
The PDC ultimately declined to take action and dismissed Zemke’s complaint.
State lawmakers need to address this loophole in our public disclosure law when they return in January. As The Olympian said: “Let’s not look away and pretend there isn’t a behind-the-scenes maneuver under way here. Let’s hold political actors including lobbying interests and others accountable for the money they spend in politics. That includes politics-related legal skirmishes that could shield actual campaign contributions.”
With no end in sight to Tim Eyman’s stonewalling in the main State v. Eyman case, Thurston County Superior Court Judge James Dixon on Friday doubled the daily contempt sanctions against him and his associates from $250/day to $500/day and granted the state direct access to Eyman’s banking records.
That’s sure to irritate Eyman, who undoubtedly hoped that the filing of the lawsuit would bury the news of the contempt finding and get him ink, airtime, and pixels on his terms.
Although Attorney General Bob Ferguson did not issue a news release following Friday’s decision by Judge Dixon, he did comment on the record for Connelly and Cornfield.
Here are his comments on the contempt finding:
The court today found Tim Eyman and his co-defendants are in contempt because of their failure to fully comply with our discovery requests. Mr. Eyman has resisted our efforts to shine a light on his activities every step of the way. Hopefully, the contempt sanctions will finally motivate Mr. Eyman and his associates to comply with the court’s order to produce the requested documents, including relevant financial information.
Dixon’s written order has not yet been released, but when it is, we will publish a link to it.
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