Category Archives: In the Courts

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.

Memo to the Seattle Times: Majority vote means fifty percent plus one – no more, no less!

Election PostmortemIn the CourtsRethinking and Reframing

The following is the text of the letter to the editor sent by NPI to the Seattle Times in response to the Times’ Sunday editorial urging the state Supreme Court not to strike down I-1053 if it receives an opportunity to do so.

In your Sunday, June 5th editorial (State’s two-thirds rule on taxes should be retained), you contend that Tim Eyman and BP’s Initiative 1053 (which violates Article II, Section 22) could pass constitutional muster:

The constitution does say a majority, but it uses negative language. It says, ‘No bill shall become a law’ without a majority. The state’s Republican attorney general, Rob McKenna, argues that this sets a minimum standard, and that the voters, through the initiative process, may temporarily raise it.

A similar argument was made by proponents of a 1053-like measure in Alaska several years ago, and rejected by Alaska’s Supreme Court in Alaskans for Efficient Government v. State of Alaska (2007). “Other courts interpreting constitutional language have wisely refrained from attributing any automatic significance to the distinction between negative and positive phrasing,” the Court ruled.

Referring to the proponents (Alaskans for Efficient Government), the Court added:

AFEG’s logic would just as readily compel the anomalous conclusion that section 14 was meant to set a ceiling but not a floor — that a majority vote would be the maximum needed to enact any bill, but the legislature would remain free to specify a sub-majority vote as sufficient to enact laws dealing with specified subjects, as it saw fit.

Majority vote means fifty percent plus one. No more, no less. There is no minimum standard. There is only the standard the founders intended – the only standard that makes sense in a democracy.

Our founders knew when it was appropriate to use supermajorities to protect minority rights from mob rule. Wherever a supermajority is required, the Constitution spells it out. But there is no reference to supermajorities in Article II, Section 22. That’s because the founders intended for a majority vote to decide the fate of all bills – not just some bills.

Initiative 1053 is a slippery slope. Unless it is struck down, we will not be protected against future copycat measures that undemocratically tie lawmakers’ hands and prevent our republic from functioning as it was designed to.

The Times gravely errs in attempting to justify its support of an initiative that dangerously undermines our plan of government.

POSTSCRIPT: The Seattle Times has published this letter online.

Statement on the invalidation of Initiative 747

In the CourtsStatements & Advisories

The Northwest Progressive Institute and Permanent Defense this morning applauded the State Supreme Court’s invalidation of Tim Eyman’s Initiative 747, which placed draconian limits on property taxes in 2001. The Court upheld a lower court decision which found the initiative unconstitutional.

“Today’s ruling is a victory for the people of the State of Washington,” said NPI Executive Director Andrew Villeneuve. “Neither the Legislature nor initiative sponsors have the right to mislead voters with inaccurately drafted law. The Supreme Court has affirmed once again that Tim Eyman’s habit of cutting corners with poorly conceived language is not acceptable.”

“Our state’s Constitution is a meaningless document unless its protections are enforced,” Villeneuve added. “No statute may violate the Constitution for any reason. Those who sponsor initiatives for a living are bound to abide by the same rules that the Legislature must follow. Citizen lawmaking, like the privilege of serving in the Legislature, carries with it huge responsibility.”

PREVIOUS EYMAN INITIATIVES DECLARED UNCONSTITUTIONAL:

  • I-695 (1999): Slashing vehicle fees
  • I-722 (2000): Slashing property taxes

EYMAN’S RECORD — FULL OF FAILURES

Besides the court invalidations of I-695 and I-722, Tim Eyman’s record is full of defeats:

  • I-745 (2000): Tried to redirect transportation funding to roads, defeated by voters
  • I-776 (2002): Failed to stop Sound Transit’s light rail project or eliminate bonds (the main intent)
  • I-267 (2002): Tried to redirect transportation funding to roads, never qualified for the ballot
  • I-807 (2003): Initiative 960’s more recent predecessor never qualified for the ballot
  • I-864 (2004): Tried to slash property taxes, never qualified for the ballot
  • I-892 (2004): Tried to expand gambling, defeated by voters
  • I-900 (2005): Gave the state auditor too much power to conduct performance audits. Approved.
  • I-917 (2006): Tried to slash vehicle fees, never qualified for the ballot
  • R-65 (2006): Tried to legalize discrimination on the basis of sexual orientation, never qualified for the ballot

For more information, check out the complete Failure Chart.

I-960 lawsuit will continue for now

In the Courts

Our parent organization’s blog reports that Futurewise and SEIU 775 – the plaintiffs in the lawsuit to block Tim Eyman’s initiative from being considered by voters – have filed an emergency motion for accelerated review with the state Supreme Court because the Superior Court refused to actually consider the issues at hand.

That’s good news, but the Court still has to take the case.

MORE (JULY 25th): A number of articles have appeared recently in Washington media outlets conveying the idea that Tim Eyman’s I-960 has overcome all obstacles and is now guaranteed to go before the voters of Washington State. Despite I-960’s passage of a random sample check conducted by the Secretary of State’s office, the initiative is still not cleared for placement on the ballot yet because Futurewise and SEIU 775 have appealed Judge Catherine Shaffer’s decision to allow I-960 to proceed. The lawsuit thus continues while the state Supreme Court decides whether to hear the case.

“If the Supreme Court accepts the case, it is our hope that it will set a precedent that checks abuse of the initiative process and upholds the rule of law,” said NPI Executive Director and Permanent Defense Chair Andrew Villeneuve.

“The initiative process has limitations for good reason. It cannot, for instance, be used to amend the U.S. Constitution. An initiative that attempted to covertly amend the U.S. Constitution would be struck down by the Courts and not allowed to go before voters. Likewise, I-960, which contains language that is in conflict with our state’s Constitution, ought to be nullified.”

Statement on the Initiative 747 ruling by Judge Roberts

In the CourtsStatements & Advisories

Permanent Defense today applauded the decision of King County Superior Court Judge Mary Roberts, who ruled that Tim Eyman’s Initiative 747 was unconstitutional.

“It’s a very simple concept: Washington State laws, including initiatives passed by voters, cannot violate the state Constitution,” said Permanent Defense Chair Andrew Villeneuve. “We agree with the judge and believe her reasoning in this case is sound.”

“What’s more, Initiative 747 has already caused significant damage to communities throughout Washington State,” Villeneuve added. “Police and fire departments, libraries, parks, pools, and other public services have been badly hurt by I-747.”

“Not only are Tim Eyman’s initiatives bad for public services and bad for our communities, but they are poorly written and out of compliance with our state’s constitution.”

According to the Department of Revenue, the loss to the state property tax totals $226,923,000 for the 2005-2007 biennium while losses to local taxing districts total $571,496,000. That’s $571 million dollars – an enormous sum of money. The loss to local governments in 2006 alone is some $285 million dollars (PDF).

Incidentally, there are several conflicts of interest in this court case: Attorney General Rob McKenna, who has (so far) unsuccessfully defended I-747 for the state, was a coauthor of the initiative. The other initiative coauthor is Jim Johnson. Johnson currently sits on the state Supreme Court, which may hear this case on appeal.

Permanent Defense will be calling for Johnson to recuse himself from the case if the state Supreme Court agrees to hear the appeal.

Whitman County, nonprofits sue to invalidate Initiative 747

In the Courts

Good news from the Puget Sound Business Journal:

Whitman County and a coalition of nonprofit groups are suing the state, arguing that Tim Eyman’s Initiative 747, which capped state and local property tax increase at 1 percent per year, is unconstitutional.

At a hearing in King County Superior Court on Friday, June 2, the plaintiffs will argue that I-747 didn’t accurately describe the law it would amend and that the initiative’s ballot title didn’t accurately describe its subject. The group said similar arguments were used to invalidate Initiative 695, another Eyman initiative aimed at reducing car-tab taxes to $30.

The lawsuit is brought by Whitman County and several nonprofits, including Washington Citizen Action, the Welfare Rights Organizing Coalition, and Futurewise, the group formerly known as 1,000 Friends of Washington.

I-747 created a funding crisis for local and state governments, the group said.

“Initiative 747 has taken a dramatic toll on small county governments like those east of the mountains,” said Whitman County Commissioner Jerry Finch. “Under this initiative, our revenue simply cannot keep up with inflation and we are being forced to cut critical services.”

Eyman’s Initiative 18 lawsuit is ridiculous

Ballot WatchdoggingIn the Courts

Once again, Tim Eyman is sticking his nose where it doesn’t belong… into other people’s business.

Initiative 18 is a King County initiative originally sponsored by the King County jail guards’ union that would reduce the size of the King County Council from thirteen members to nine.

The union was mad at the council because their pay was cut, and alas, decided to file an initiative to reduce the size of the Council.

All that money, spent just on revenge. To get some help, they hired initiative profiteer Tim Eyman, who not only loves making money, but taking up a cause against a government that doesn’t even have jurisdiction over him.

Eyman lives in Mukilteo, in Snohomish County, but that doesn’t stop him from attacking the “Cadillac” King County Council for no particular reason other than the fact that it has thirteen members.

Eyman, and the jail guards union, have claimed that it’s too much bureaucracy, and that the Council should be reduced. But any government is obviously too much government for Tim and his cronies in the jail guards’ union.

Perhaps they would prefer if the criminal justice system were dismantled and criminals were allowed to roam free. Or that funding for public services was cut off and everyone was left to fend for themselves.

There is nothing wrong with having thirteen seats on the King County Council. It’s not a “Cadillac” Council. That’s just another stupid label that Tim Eyman has attached in order to defame his opponents.

King County is the state’s largest county and home to its largest city. The problem is that the county is very diverse. There are urban, suburban, and rural communities and cities throughout the county.

In order to represent all of these people, more seats are needed on the King County Council than in other counties.

Shrinking the council by four seats won’t save very much money. In fact, it will almost cost more money to downsize than it would to stay the same. Districts have to be realigned and reassigned. They will become larger.

A councilman or councilwoman will have to represent more people. A broader constituency means the council members will be more removed from the electorate.

I-18 should be seen for what it is- a dim-witted attempt to get revenge on the very people who are trying to do their best to govern the state’s largest county.

The council has tried its best to accommodate the wishes of the people who signed the initiative. The council has basically agreed to the amendment, but voted to postpone the changes for another couple of years.

But either that’s too much, or not enough, for Washington’s premier initiative profiteer. Tim has filed a lawsuit to stop the “sabotage” of Initiative 18 by the County Council.

The Council voted 9-4 to postpone effective changes to downsize the Council- an overwhelming majority.

The jail guards’ union even agreed to the postponement, but Tim Eyman decided not to follow suit. Instead, he filed a lawsuit seeking to stop the Council’s amendment.

Now, along with the son of the late Kent Pullen, who used to be a council member, Eyman is a co-plaintiff in a lawsuit to stop the King County Council from making those changes. Curiously, the lawsuit was filed in Snohomish County.

Clearly, no change is fast enough for Tim Eyman, even when it isn’t his issue or his government. Eyman’s meddling is outrageous. He has no business interfering with King County’s affairs.

It is clear that Eyman initiatives, and Eyman-backed initiatives, can only mean bad news for Washington State and its communities.

And voters are quickly beginning to realize this fact. 3 of the last 4 Eyman initiatives have failed to make the ballot- and one only succeeding because of heavy financial support by the gambling industry- the special interests.

There is no tax revolt, and no mass anti-government movement in Washington State. It is a myth spread by Tim Eyman and his small band of supporters, who don’t even show up when Tim comes to Olympia to turn in signatures. It’s the largest political sham in the history of the State of Washington.

And the electorate is finally beginning to see it for what it is.

Eyman claims premature victory on I-776 court ruling

Election PostmortemIn the Courts

Tim Eyman, notorious for making sensational predictions, lying about finances, being deceptive to voters and declining to face the reality of his own tax cuts, has declared victory in the I-776 court ruling which has not yet been made public. Eyman’s “victory” statement is an unfounded gamble based on wild speculation and wishful thinking. On Monday, October 6th, Eyman sent an email which was titled:

Supreme Court to uphold Initiative 776 this Thursday, derailing Sound Transit’s light rail and its pursuit of $500 million in federal funds

The body of the email includes sentences like:

“But the Supreme Court wasn’t buying Sound Transit’s delusional second-subject fantasy…….”

“That’s why it’s so satisfying to watch them suffer with the Supreme Court’s affirmation of I-776. I-776 blows a huge 20% hole into the side of Sound Transit’s battleship.”

“Two days from now (Wednesday afternoon) on the State Supreme Court’s website (www.courts.wa.gov), they will announce that their decision on I-776 will be released on Thursday. Once they do affirm I-776 on Thursday, just sit back and watch the taxpayer-financed political hacks at Sound Transit go into full-blown damage control.”

Once again, Eyman is trying to act as our political meteorologist. The only problem is that he never studied judicial weather and he predicts an overturning downpour when there may be a upholding sun.

Eyman is making big, wild gambles that are based solely on what he heard the judges say to Sound Transit’s lawyers in one day in the courthouse, and what he desperately hopes. Furthermore, his quotes from the email are only ones aimed at Sound Transit. The article doesn’t mention any questions justices asked the Attorney General, who is defending the initiative as required to by law.

PD conducted an investigation following the reception of the email to see if a leak had enabled Eyman to learn the ruling in advance. This is what the State Supreme Court said in an email response to our inquiry:

The court does not announce its decisions in advance, even to the parties of the case. It does try to announce one day in advance which opinions will be published, but the result is never given in advance.

The Attorney General’s office said:

We certainly have no independent knowledge either when the opinion is coming out or what its contents are. In the past, most of the hot “tips” we’ve heard about cases coming down turn out to be unfounded rumors. We will be anxiously awaiting the official ruling when it comes out.

Premature victory declarations will not help Eyman to continue to destroy the State of Washington. Sensationalized messages, as in this case, are as pointless as the tax cuts Eyman promotes, for they come at the heavy cost of uprooting public services.

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