Tag Archives: I-1185

NPI applauds Attorney General Bob Ferguson for going to court to put an end to Tim Eyman’s stonewalling

In the Courts

Following Attorney General Bob Ferguon’s announcement today that his office has filed motions in Snohomish and Thurston Superior Court to enforce subpoenas issued as part of the state’s investigation into Tim Eyman’s egregious violations of Washiington’s public disclosure laws, the Northwest Progressive Institute called on Eyman and his associates to stop stonewalling and cooperate fully with investigators.

“We commend Attorney General Ferguson for going to court to compel Tim Eyman to turn over the records needed to investigate the illegal concealment uncovered by the Public Disclosure Commission during its investigation into the 2012 I-517 and I-1185 campaigns,” said NPI founder and Executive Director Andrew Villeneuve.

“Today’s court filings make it plainly clear that Tim Eyman has been incredibly uncooperative with the Attorney General’s investigation since it began last autumn. He has refused to turn over documentation that would reveal what really happened. What little he has produced has been heavily redacted, suggesting he and is attorney are trying to drag this out as long as possible, and increase the cost of the investigation to taxpayers.”

“This stonewalling is completely unacceptable, and it needs to end immediately.”

“If Eyman expects to be exonerated, as his attorney Mark Lamb has previously said, then why is he refusing to cooperate with the state’s investigation? We can only conclude that it is because the evidence will show that Eyman is guilty of the charges against him, and Eyman wants to put off his day of reckoning for as long as possible. But that day is coming, and Eyman can’t stop it.”

Earlier today, in a related development, the Public Disclosure Commission (PDC) notified Washingtonians For Ethical Government (WFEG) that it has opened an investigation into its allegations that Tim Eyman again broke the law by failing to report the launch of an April 2016 independent expenditure against several dozen Democratic state legislators, and for failing to include required disclosures in the ads produced as part of the expenditure.

WFEG notified Attorney General Bob Ferguson and Prosecuting Attorney Dan Satterberg on May 25th in a forty-five day notice letter that it would bring a citizens’ action against Eyman in Superior Court if the state did not take action against Eyman. On June 7th, 2016, the Attorney General referred the matter to the PDC for review. The PDC has now opened an investigation into the allegations and assigned a case number — 5729.

“We are pleased to hear that the PDC is investigating Eyman’s most recent public disclosure law violations,” said Villeneuve, who serves as a boardmember of Washingtonians For Ethical Government. “Tim Eyman is a serial offender who needs to be held accountable. He has been given plenty of opportunities to clean up his act, and he has failed to do so. He should be penalized to the maximum extent the law allows for these violations, as well as his previous violations.”

PDC votes to refer case against Tim Eyman to Attorney General Bob Ferguson

Eye on Money: DevelopmentsStatements & Advisories

This morning in Olympia, after hearing staff summarize their findings in Case 13-027 (Protect Your Right To Vote On Initiatives and Tim Eyman) and Case 15-078 (Voters Want More Choices and Tim Eyman), the five-member Public Disclosure Commission voted unanimously to refer the matter to Attorney General Bob Ferguson for prosecution, owing to the seriousness of the violations.

Northwest Progressive Institute founder and executive director Andrew Villeneuve, who has been organizing opposition to Eyman’s initiatives for over thirteen and a half years, applauded the PDC’s action and urged the Attorney General to swiftly follow up by initiating legal proceedings against Eyman.

“Today, our Public Disclosure Commission took a crucial, important vote to hold Tim Eyman accountable for his outrageous abuse of our state’s initiative process and repeated, deliberate violations of our cherished public disclosure law,” Villeneuve said.

“As Commissioner Anne Levinson said, the violations alleged in these cases are extremely troubling. The Commission’s statutory authority is simply inadequate to ensure that the punishment fits the crime. We applaud the PDC for referring this grave matter to Attorney General Bob Ferguson with an explicit request to broaden the scope of the state’s investigation to past and present periods.

“Tim Eyman needs to be held accountable for his wrongdoing as well as his stonewalling, which impeded PDC staff from finishing their investigation in time for the 2013 general election two years ago, when I-517 appeared on the ballot. ”

As PDC staff noted in their report, it appears that Eyman has been receiving kickbacks from his associates Citizen Solutions for over a decade, profiting from his own signature drives without disclosing that to the people of Washington State.

In the words of PDC staff:

Finally, staff found evidence that the undisclosed $308,185 payment Mr. Eyman received from Citizen Solutions on July 11, 2012 may have been one in a series of such payments. Staff obtained sworn testimony from Edward Agazarm, a former principal of Citizen Solutions, Incorporated, that on multiple occasions between 2004 and 2011, after paying hundreds of thousands of dollars in committee funds to Citizen Solutions to qualify his initiatives for the ballot, Mr. Eyman then sought and received payments back from the firm ranging from $5,000 to $100,000 per campaign. Mr. Agazarm testified that these payments compensated Mr. Eyman for services he rendered to Citizen Solutions, Incorporated. He stated that among other services, Mr. Eyman was compensated for bringing business to the signature gathering firm, including the business generated by Mr. Eyman’ s own initiative committees.

“For too long, Tim Eyman has operated as though he were above the law, without regard for the consequences,” Villeneuve said.

“Even today, as the Public Disclosure Commission was listening to staff present the allegations against Tim, he was shamelessly sending out yet another email shaking his electronic tin cup. He never quits hitting his followers up for money.”

“The state has repeatedly fined Eyman before for violating our public disclosure law, and even reached an agreement with him that he never again serve as a campaign treasurer, but he has continued to manipulate money himself for electoral purposes using a shell company that he controls, as PDC staff have documented.”

“Tim Eyman’s wealthy benefactors may not be bothered by his run-ins with the law, but we as a people can no longer tolerate his abusive behavior and destructive schemes to wreck our government.”

“It is our fervent hope that the Attorney General will prosecute this case to the fullest extent of the law, and win a conviction. As the Spokesman-Review has editorialized, ‘If Eyman is found guilty of these charges, he should forever be banished from initiative campaigns.'”

PDC investigation finds Tim Eyman broke Washington’s public disclosure law, again

Eye on Money: DevelopmentsStatements & Advisories

This morning, the staff of the Public Disclosure Commission released the results of the agency’s long-running investigation into Tim Eyman’s I-517, the initiative on initiatives Eyman qualified in 2012, which was overwhelmingly rejected by voters in November of 2013. PDC staff found Eyman and his initiative factory repeatedly violated RCW 42.17A by concealing the source of the I-517 campaign’s funding, and are recommending that the Commission refer the case to Attorney General Bob Ferguson for prosecution.

The investigation, initiated by a complaint filed three years ago by activist Sherry Bockwinkel of Tacoma, stretched on for two and a half years, and was slowed by Tim Eyman’s refusal to fully cooperate and turn over records sought by PDC staff in a timely fashion. State attorneys were ultimately called upon to assist the PDC in enforcing its subpoena power, and last week, Eyman turned over a number of records to the state, resulting in the postponement of the hearings that had been scheduled on the matter in Thurston and Snohomish County Superior Courts.

“We’re very pleased that the PDC has finally finished its investigation into Tim Eyman’s I-517 and has concluded that Tim Eyman must be held accountable for concealing campaign money,” said NPI founder and executive director Andrew Villeneuve, who has been organizing opposition to Eyman initiatives for thirteen and a half years. NPI has been in regular contact with PDC staff about the investigation; in May of 2014, Villeneuve traveled down to Olympia and testified alongside several representatives of Washington’s business community, expressing concern that the investigation was still unresolved.

“The documentation collected by the PDC and published as exhibits to its findings confirms what we have long known to be true: Tim Eyman used contributions made in support of the campaign for his last I-601 clone, I-1185, to qualify I-517, a self-serving initiative intended to make it easier and cheaper for him to qualify future initiatives to the ballot in Washington State,” said Villeneuve. “Tim Eyman deliberately chose to run a stealth campaign in violation of our state’s public disclosure law, deceiving his own donors and withholding information about his activities from the public.”

“At long last, Tim Eman’s misdeeds are catching up to him,” Villeneuve added. “The day of reckoning has come. We emphatically urge the Public Disclosure Commission to adopt the staff’s recommendation that this case be referred to the Attorney General for prosecution. The wrongdoing detailed in these findings is part of a pattern of behavior that stretches back to nearly the beginning of Eyman’s career.”

In February of 2002, Eyman admitted having taken hundreds of thousands of dollars from campaign funds for his own personal use while at the same time lying to the press, the public, and his own followers in claiming that he was working as a volunteer.

“It was the biggest lie of my life” that no donations had made their way into his personal bank account, Eyman told The Associated Press’ Dave Ammons, admitting, “The fact is, it is true that I made money in past campaigns and planned to make money on future campaigns.” Ammons also memorably reported that Eyman told him: “I want to continue to advocate issues and I want to make a lot of money doing it.”

Eyman has certainly profited handsomely from his initiative factory over the years. As PDC staff note in their findings, it appears Eyman has been double-dipping for a long time. He pays himself a salary out of campaign funds (which is disclosed in PDC reports), but then he also gets kickbacks from his buddies Eddie Agazarm and Roy Ruffino, who control the shady signature gathering firm Citizen Solutions.

NPI, along with Civic Ventures’ David Goldstein, has long suspected that Eyman gets a cut of the money that is expensed to pay for his signature drives.

Now we know it’s true.

It’s quite the racket: Eyman raises money from wealthy benefactors on a near-annual basis to fund a signature drive for an ill-conceived scheme to wreck government, telling them he needs over a million dollars to qualify for the ballot, when in reality, he needs less. This ensures that when the drive is completed, there is plenty of money left over for Eyman’s associates to pocket as profit, and to send back to Eyman for his personal use… or, in the case of the I-1185 campaign, to qualify a second initiative (I-517) with a stealth signature drive.

Eyman profits whether his initiatives win or lose (and nearly all of them have either been rejected by voters, failed to qualify, or been struck down by the courts).

The case numbers in this matter are 13-027 and 15-078. The Public Disclosure Commission will take up both at its meeting this Thursday, September 24th, at 9:30 AM in 711 Capital Way, Room 206 in Olympia. NPI will be there and is happy to make representatives from its staff, board, and advisory council available to the press to take questions and comment about the cases.

Pot, meet kettle: Tim Eyman attacks Governor Jay Inslee for “employing political spin” on revenue

Rethinking and ReframingStatements & Advisories

Another Monday has arrived, and so has another mid-morning Eyman missive that sounds like it was put together on an assembly line in Tim’s home office. Today’s target is Governor Jay Inslee, who took office less than two weeks ago and is now trying to put together a budget proposal – presumably a proposal that will square with what he said during last autumn’s campaign.

Inslee and his team are weeks away from presenting their budget, but that hasn’t stopped Tim Eyman from charging that Inslee intends to raise taxes.

In Eyman’s universe, any action that forestalls a decrease in revenue is really a tax increase, just as the repeal of any tax loophole or exemption is a tax increase. It is worth remembering that Eyman’s own unconstitutional, undemocratic initiatives use his definition for what a tax increase is.

And since I-960/I-1053/I-1185 are regrettably on our books, the Office of Financial Management is using Eyman’s definition – because Eyman’s own initiative requires them to! From Section 2 of I-960:

(1) For any bill introduced in either the house of representatives or the senate that raises taxes as defined by RCW 43.135.035 or increases fees, the office of financial management must expeditiously determine its cost to the taxpayers in its first ten years of imposition, must promptly and without delay report the results of its analysis by public press release via email to each member of the house of representatives, each member of the senate, the news media, and the public, and must post and maintain these releases on its web site. Any ten-year cost projection must include a year-by-year breakdown. For any bill containing more than one revenue source, a ten-year cost projection for each revenue source will be included along with the bill’s total ten-year cost projection. The press release shall include the names of the legislators, and their contact information, who are sponsors and co-sponsors of the bill so they can provide information to, and answer questions from, the public.

We can see from this provision of I-960 that the initiative also stupidly requires OFM to do ten-year cost projections. As our friends at the Washington Budget & Policy Center have pointed out on several occasions, these projections are worthless. By Eyman’s logic, a police lieutenant in NPI’s hometown of Redmond will make more than half a million dollars — over the next ten years.

During the 2010 legislative session, the Legislature raised revenue by around $600 million per year. And a substantial chunk of that is actually set to expire this year. So Eyman’s billion-dollar figures are bogus.

Eyman loves to talk about – and distort – the revenue side of the equation when it comes to the state budget. But he almost never talks about the value side. It often seems as though Eyman would like us all to believe the membership dues we pay as citizens of this great state of Washington just disappear into the ether.

In reality, our taxes provide for roads, bridges, ferries, buses, rail transit, libraries, parks, pools, schools, universities, police and fire protection, clean drinking water, and waste treatment, as well as mental health counseling, housing, and other human services for the most vulnerable among us.

And that’s just the abridged version of what is a long list.

We all benefit from these public services, Tim Eyman included. And we all lose when draconian cuts result in services being eviscerated or eliminated. Austerity measures are bad for public health, bad for environmental freedom, bad for safe neighborhoods, and bad for economic security. Austerity measures lead to lost jobs in the public sector and start a chain reaction that causes real GDP to fall by an amount larger than the total amount of money they “save”. (Those reading who have studied macroeconomics know this concept is known as the multiplier effect).

Eyman’s initiatives are purposely written to deprive our common wealth of the revenue that our public services need to stay in strong shape.

In his early days, Eyman hawked schemes that slashed revenue directly; but he has since taken to heart a famous saying of Grover Norquist’s: “I’m not in favor of abolishing the government. I just want to shrink it down to the size where we can drown it in the bathtub.” That’s why his more recent initiatives take a death-by-a-thousand-cuts approach to wrecking state and local government.

Eyman tries to make it sound as though state government is some monstrous beast consuming more and more of our money with every passing year. But this is a fiction. State and local taxes per $1,000 of personal income have actually been on the decline since before the the Great Recession hit, as the Office of Financial Management shows on this page, complete with a chart that also shows the fifty state average.

In 1995, state and local taxes per $1,000 of personal income hit a high of $119.93. In 2010, the most recent year for which data was available, the figure stood at $94.48. That’s a decrease, not an increase, and a fairly significant decrease over fifteen years.

What about expenditures? Well, again, contrary to Tim Eyman’s hyperbolic rhetoric, expenditures have not been on a meteoric rise. State and local government expenditures per $1,000 of personal income have risen and declined slightly at times over the past two decades, but expenditures today are lower than they were in the early nineties. Here’s the data from OFM, again with a nifty chart.

Twenty years ago, in 1993, state expenditures stood at $224.37 per $1,000 of personal income. That was the high point during the last two decades. In 2010, the most recent year for which data was available, the figure was $200.42.

Again, that’s a decrease, not an increase.

Furthermore, since 2000, Washington’s average has tracked the fifty-state average.

How revenues and expenditures are measured matters. By presenting information in absolute terms, Tim Eyman can make it seem as though government just keeps taking more and more of our money. But the truth is that we the people are the government, and we have reduced our obligations to each other over the last twenty years.

Washington is not the same state it was in 2003, 1993, or 1983. As our economy has grown, so has the demand for public services. The state may be taking in more revenue than it did not long ago in absolute terms, but in relative terms, it’s not. And data cannot be fairly or meaningfully compared year-to-year in absolute terms; as the oft-used expression goes, it’s like comparing apples to oranges.

Ten years ago was a different time; twenty years ago was a different time. Even last year was a different time. We have to compensate for population growth, new development, inflation, and other factors when we consider what it costs to provide services now versus what it cost back then. That’s why it makes sense to look at revenue and expenditures per $1,000 of personal income.

It is beyond ironic that Tim Eyman is accusing newly inaugurated Governor Jay Inslee of “employing political spin”. Nobody is better at generating spin and manipulating the media in Washington than Tim Eyman, who shows no signs of wanting to call it quits after more than a decade of promoting initiatives… and profiting from them.

Tired of legislative gridlock? Then vote NO on I-1185

EndorsementsRethinking and Reframing

The Olympian, our state capital’s longtime daily newspaper, published a truly superlative editorial today calling for the rejection of Tim Eyman and BP’s Initiative 1185 which we commend to the attention of voters, activists, and reporters. It’s one of the best editorials we’ve seen in a long time, and we can’t say enough good things about it. Here are its opening lines:

Voters, are you tired of a Legislature that can’t make progress on fully funding basic education?

Do you want less-congested highways, and lower tolls on bridges? Do you want state parks that stay open, and in good repair? Do you want college tuitions that your family can afford?

Do you want quick response times from law enforcement, fire fighters and ambulances when you need them?

If you do, then you must reject Initiative 1185 on Nov. 6.

By continuing to support these Tim Eyman initiatives you are subverting a fundamental principle of representative democracy.

That principle? Majority rule with minority rights. We will cease to be a democracy if power becomes concentrated in the hands of the few instead of the many. Initiative 1185, like its predecessors, takes power away from the many and gives it to the few. It is intended to prevent our Legislature from functioning democratically as our founders intended it to. I-1185 allows seventeen out of forty nine senators, or thirty-three out of ninety-eight representatives, to kill any bill that raises (or even recovers) revenue for the state treasury.

Corporate lobbyists are for I-1185 because it’s easier to manipulate a system that’s rigged. That’s why companies like BP, ConocoPhillips, Shell, and Tesoro gave Tim Eyman and his buddies more than a million dollars to buy signatures for I-1185. I-1185 helps them protect their profits… at our expense.

Join us in voting NO on I-1185. Let’s uphold our Constitution and reject this attack on our democracy.

Everett Herald takes courageous, thoughtful position against Tim Eyman’s I-1185

EndorsementsFrom the Campaign Trail

Recognizing that Tim Eyman’s latest oil and beer soaked initiative would prevent our Legislature from democratically functioning as our founders intended it to, the Everett Herald today emphatically recommended a NO vote on I-1185, joining NPI’s Permanent Defense and hundreds of other organizations in opposing the measure.

The paper’s stance is a reversal from just two years ago, when The Herald backed I-1185’s predecessor, I-1053. Of its change of heart, the paper’s editors wrote:

We were wrong. Rather than pressure reforms, Eyman’s supermajority rule has spurred paralysis. Rather than bolster creative solutions to benefit the average taxpayer, the two-thirds’ mandate is now one of the apron strings special interests hide behind to avoid ponying up.

The latest incarnation of Eyman’s supermajority effort, I-1185, is bankrolled by the likes of BP (the company that brought us the Deepwater Horizon oil spill) and ConocoPhillips. Each has contributed $100,000, with an additional $400,000 from the Beer Institute. Why so much loot from Big Oil and non-Washington booze interests? With 1185, it takes a simple majority vote in the Legislature to create a tax loophole, but a two-thirds’ supermajority to undo it. Not a bad scheme if you’re a deep-pocketed special interest. It’s a much higher hurdle, however, for Washington families that support tax fairness.

We commend The Herald for this editorial. It’s courageous, it’s thoughtful, and it’s honest. The Herald is correct in asserting that the two-thirds scheme leads to gridlock. It allows seventeen state senators and thirty-three state representatives to block bills that would raise revenue in their respective houses. That’s undemocratic and unconstitutional. Article II, Section 22 of our state Constitution plainly states that bills shall pass by majority vote. Majority vote means fifty out of ninety-eight in the House, and twenty-five out of forty-nine in the Senate. No more, no less.

Proponents of I-1185 don’t have a problem with allowing majority votes to decide the fate of legislation that creates new tax breaks, or in legislative parlance, tax preferences, as The Herald notes. But they argue that recovering revenue for our state treasury by repealing a loophole amounts to a tax increase, and should require a two-thirds vote. That’s a double standard. If it takes a two-thirds vote to get rid of a tax break, it should take a two-thirds vote to create one.

Like its predecessors I-960 and I-1053, I-1185 is unconstitutional, undemocratic, unfair, and unsound. Vote NO on I-1185.

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.

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.

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