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.

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.