By the end of this week, and possibly as soon as tomorrow, the Washington State Supreme Court is expected to release its decision in Huff v. Wyman, the legal challenge to Tim Eyman’s Initiative 1366, filed in late July by King County Elections Director Sherril Huff, Thurston County Auditor Mary Hall, State Senator David Frockt, State Representative Reuven Carlyle, and activists Eden Mack, Gerald Reilly, Tony Lee, Angela Bartels, and Paul Bell.

The aforementioned plaintiffs are asking that Secretary of State Kim Wyman be enjoined from placing I-1366 on the November 2015 ballot because the initiative exceeds the scope of the people’s initiative power as defined in Article II, Section 1 of the Washington State Constitution. I-1366 would cut sales tax revenue by $8 billion over the next six years, unless, by mid-April of next year, the Legislature agrees to Eyman’s demand for a constitutional change permanently requiring a two-thirds vote of each house to raise or recover revenue.

King County Superior Court Judge Dean Lum, who heard the case at the trial court level, found that I-1366 was beyond the scope in a decision issued on August 14th, but declined to set it aside, saying, “The Court cannot say at this time whether Plaintiffs’ actual and substantial injuries outweigh Defendants’ First Amendment rights under the United States Constitution or their rights under Article I, Section 5 of the Washington State Constitution.”

Lum’s decision was immediately appealed to the state Supreme Court. The Court has been asked to render a final verdict no later than this Friday.

Wyman, represented by Attorney General Bob Ferguson’s office, would like the Supreme Court to keep I-1366 on the ballot, but is not asking for case to be thrown out on a technicality — unlike her co-defendants Tim Eyman, Mike Fagan, and Jack Fagan.

Eyman has tried to equate Huff v. Wyman with Coppernoll v. Reed and Futurewise v. Reed — two previous and ultimately unsuccessful challenges to statewide initiatives (the latter being a pre-election challenge to an initiative he sponsored, I-960).

In an email sent this morning, Eyman claimed: “There have been 2 unanimous state supreme court rulings — Coppernol’s 9-0 decision in 2005 and Futurewise’ 9-0 decision in 2007 — that rejected lawsuits just like this one.”

Eyman is wrong. While it is true that the Supreme Court unanimously ruled against the plaintiffs in Coppernoll (note that Coppernoll is spelled with two l’s) and Futurewise, it is not true that Huff and Hall’s case is “just like” those challenges.

In fact, it is very different — as we can see from examining the position taken by the Secretary of State in each of the respective cases.

In Coppernoll, the Secretary of State asserted that the plaintiffs had really filed a substantive challenge, dressed up as a scope challenge.

As the Supreme Court said in its decision:

Here the parties disagree as to the category of preelection review sought by petitioners. Petitioners cast their unconstitutionality claim as a challenge to whether I-330 is validly within the legislative power, whereas respondent secretary of state and intervenor medical groups label the claim as a challenge to the substantive validity of I-330.

In Futurewise, the Secretary of State took a similar position. The following are headings from the Argument section of the table of contents of the Secretary of State’s brief in Futurewise, which neatly sum up the state’s position:

• Appellants’ Challenge To 1-960 Is Not Within The Narrow Exception For Pre-Election Challenges To Proposed Initiatives
  • Pre-Election Challenges May Proceed Only Under Two Narrowly-Proscribed Circumstances; Neither Of Which Arise In This Case
  • A Challenge That An Initiative “Exceeds The Scope Of The Initiative Power” Is Limited To Challenges Based On The Extent And Nature Of Legislative Authority
  • The Challenge To Initiative 960 Fails For The Same Reasons Stated In Coppernoll

In this case, however, the Secretary of State has taken the position that the plaintiffs’ scope challenge is properly before the courts — which is extremely significant. From the state’s brief to the Supreme Court in Huff v. Wyman:

This Pre-Election Challenge To I-1366 Merits Judicial Resolution Despite Issues Of Standing

[…] the Secretary of State asserts that this matter is properly before this Court for final determination. Plaintiffs seek to enjoin I-1366 from the 2015 general election ballot based on the assertion that it is beyond the scope of the people’s initiative power.

The plaintiffs, represented by an experienced team from Pacifica Law Group led by Paul Lawrence, point out in their own reply brief that they have brought their challenge solely on scope grounds, and no other:

Appellants have carefully crafted this litigation to focus only on whether the subject matter of 1-1366 is within the initiative power… Appellants do not argue that if enacted, 1-1366 would be unconstitutional, although that is certainly true.

The subject of I-1366 is not appropriate for direct legislation by the people, because as the trial court found, the fundamental and overriding purpose is to invoke the Article XXIII constitutional amendment process. As such, I-1366 exceeds the scope of Article II and should not be placed on the ballot.

Simply put, Huff v. Wyman is a solidly conceived scope challenge that even the State acknowledges has been properly brought. It is thus very different from the challenges brought in Coppernoll in 2005, or Futurewise in 2007.

While scope challenges to initiatives at the local level have been brought on many occasions, scope challenges at the state level are rare. This is partly because the people’s legislative power is less constrained at the state level than it is at the local level.

However, it is vital to understand that the people’s legislative power does not extend to amending the Constitution. Proposing constitutional amendments is the prerogative of the Legislature, and the Legislature’s alone. Article XXIII of the Constitution is very clear on this point.

As Tim Eyman ironically cannot muster a two-thirds vote of the House and Senate for the amendment he wants, he is attempting to get his way through blackmail. I-1366 is a deliberate attempt to invoke the constitutional amendment process through coercion. Because it attempts to force the Legislature to propose a certain amendment by a certain date, it is beyond the scope of the people’s initiative power. This is the basis on which plaintiffs are arguing that it should be set aside.

There is precedent for a scope challenge to a statewide initiative. In 1996, in Philadelphia II v. Gregoire, the Washington State Supreme Court considered a challenge to a statewide initiative that attempted to create a federal initiative process and call a world meeting. The Court found the initiative to be outside of the scope, and blocked it from moving forward.

While it is true that the initiative in that case had not received sufficient signatures to qualify at the time it was litigated, I-1366 doesn’t deserve a pass merely because Tim Eyman was able to convince some extraordinarily wealthy people to give him money to purchase a spot for I-1366 on the November 2015 ballot.

The plaintiffs in this case view I-1366 as an outrageous abuse of the people’s initiative power. So do we. It is appropriate that the Supreme Court determine whether I-1366 is outside the scope, as the trial court found. If it is, the Court should enjoin Secretary of State Kim Wyman from placing it on the ballot.

Tim Eyman has a First Amendment right to petition any level of government in this country for a redress of grievances. He also has a right to speak freely.

But he does not have a First Amendment right to force the rest of us to vote on whatever ill-conceived schemes he comes up with to sabotage our Constitution and destroy the essential public services that we all rely on. No lawmaker, whether elected or unelected, is outside the law. And the Constitution of Washington State is the highest law in the land, second only in supremacy to the United States Constitution.

The plaintiffs note in their reply brief that Eyman’s First Amendment argument is without merit:

Indeed, despite Sponsors’ rhetoric, they do not dispute that no Washington court has ever concluded that the First Amendment or Article I, Section 5 require all initiatives to be placed on the ballot regardless of their scope.

There is simply no basis in law for Eyman’s argument, as the brief goes on to explain at significant length, citing numerous cases, including U.S. Supreme Court cases. In fact, the very argument Eyman is making was rejected by the Washington Court of Appeals (Division 2) in City of Longview v. Wallin (2013), a holding the Supreme Court subsequently let stand when it declined to take the case.

The Supreme Court should uphold our Constitution and protect our system of checks and balances by invalidating I-1366 on scope grounds. Allowing this extortion scheme to head to the ballot would set a dangerous “anything goes” precedent with regards to statewide initiatives — to the detriment of our state’s well-being.