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No Hearing Set
® Hearing is Set
Date: Friday, April 5, 2019
Time: 9:00 a.m.
Judge James J. Dixon

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STATE OF WASHINGTON
THURSTON COUNTY SUPERIOR COURT

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STATE OF WASHINGTON,

NO. 17-2-01546-34

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Plaintiff,
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V.

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PLAINTIFF STATE OF
WASHINGTON'S OPPOSITION TO
DEFENDANT'S MOTION FOR
PARTIAL SUMMARY JUDGMENT

TIM EYMAN, et al.,
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Defendants.
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I. INTRODUCTION

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Defendant Tim Eyman has spent decades lying to campaign donors and the public about

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his misuse of campaign funds, and now he is lying to this Court about what the State seeks here

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and the legal standards that apply. The Court should see through his lies and deny his motion.

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Eyman falsely claims that the State is asking this Court to enjoin him from "any

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meaningful participation in initiative campaigns." Eyman Br. at 6. In reality, the State asks only

20 that he be barred from management of "financial transactions of any kind for any political
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committee ...." First. Am. Compl. at 17 (¶¶ 6.1 - 6.4) (emphasis added). The State makes this

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limited request because Eyman has absolutely refused to comply with state campaign finance

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laws for decades and has continued to do so even after previously admitting such conduct in

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court and promising to stop it. The State's request is authorized by state law, consistent with the

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state and federal constitutions, and necessary to prevent further illegal conduct by Eyman.

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In 2002, Eyman was caught lying to donors and syphoning campaign money into his own

PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

I'

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

pockets. After the State filed suit, Eyman admitted he lied to the public and violated campaign

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finance laws. The Snohomish County Superior Court entered a judgment against him, including

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civil penalties and an injunction permanently banning Eyman "from acting as treasurer of any

4 political committee ... or as signer on any financial accounts of any such committee." See
5 Judgment Against Defendant Tim Eyman (State
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v.

Permanent Offense, Snohomish County

Cause No. 02-2-08212-1).

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At the time of his first offense, Defendant Eyman conceded that the Superior Court had

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the authority to issue its injunction. Now, after 17 years of ignoring that injunction and the law,

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hiding financial transactions from his partners and the public, laundering donations through out-

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of-state charities, directing contributions intended for one ballot measure committee to another,

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and pocketing at a minimum hundreds of thousands of dollars in campaign donations, Eyman

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argues that this Court lacks the authority to enjoin him from controlling financial transactions

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for the same types of organizations he has been bilking for decades.

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Defendant Eyman's argument fails for at least four reasons. First, the Fair Campaign

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Practices Act ("FCPA") grants this Court the authority to issue an injunction as described in the

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complaint. Second, Defendant Eyman has no First Amendment right to control the finances of a

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political committee. Third, even if he did have a First Amendment right, it can be limited by this

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Court to prevent unlawful conduct. Finally, Defendant Eyman's motion improperly requests an

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advisory opinion on an injunction that has yet to be requested. The Court should deny his motion.

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II. EVIDENCE ,RELIED UPON

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The State relies upon the pleadings in this case as well I as the declarations of Gary
Chandler, Greg Hanon, John Guadnola, and Tony. Perkins, with attachments.
III. STATUTORY HISTORY

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Enacted in 1972, Initiative 276 (1-276), which gave rise to the FCPA, codified as

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RCW 42.17A, set a high bar for transparency and integrity in politics and government in

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Washington. The public has a strong interest
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

in

the disclosure of money raised and spent on
2

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 ballot measure campaigns. "[T]he public's right to know of the financing of political campaigns
and lobbying and the financial affairs of elected officials and candidates far outweighs any right
that these matters remain secret and private." RCW 42.17A.001(10). The people directed that
these laws be liberally construed "so as to assure continuing public confidence of fairness of
elections and governmental processes, and so as to assure that the public interest will be fully
protected." RCW 42.17A.001. Of the public policies furthered by RCW 42.17A, one stands
above all others: transparency. RCW 42.17A's declaration of policy is unequivocal: "That
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political campaign and lobbying contributions and expenditures be fully disclosed to the public

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and that secrecy. be avoided." RCW 42.17A.001(1). To this end, the law "seeks to ferret out

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... those whose purpose is to influence the political process ... " and requires them to publicly

11 disclose campaign contributions and expenditures. State v. (1972) Dan J. Evans Campaign
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Comm. (Evans Campaign Comm.), 86 Wn.2d 503, 508-09, 546 P.2d 75 (1976).
IV. RELEVANT FACTUAL HISTORY

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2002 State Enforcement Action and PDC Staff Guidance to Defendant Eyman

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Defendant Eyman's history of violating Washington's campaign finance requirements

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for personal gain is undisputed. A State investigation. in 2001 and 2002 showed that Defendant

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Eyman used a corporation he established, Permanent Offense, Inc., to conceal up to $150,000 in

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payments to himself from the campaign funds of Permanent Offense PAC, a political committee

19 that Defendant Eyman established to support Initiative 776 in the 2002 general election.
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Declaration of Tony Perkins (Perkins Decl.) ¶ 17. During the State's investigation, Defendant

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Eyman stated that he established Permanent Offense, Inc. "to have a way to cover the fact that

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I was making money sponsoring initiatives, and none of my cosponsors knew that was the case."

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Id. ¶ 18 (emphasis added). The State's investigation also showed that Defendant Eyman made

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personal use of Permanent Offense PAC funds by making reimbursements to himself directly

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from the campaign account for more than $10,000 in expenses not related to the I-776 campaign,

26 and that Defendant Eyman's political committee failed to report all contributions and
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

3

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0] 00
(360) 753-6200

 1 expenditures as required. Id. ¶ 17. The State's investigation led to a court action against
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Defendant Eyman resulting in $55,000 in judgments and fees assessed to him and his political

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committee. Defendant Eyman was also permanently enjoined from acting as treasurer of any

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political committee or as signer on any financial accounts of such a committee. Id. ¶ 19.

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Following the judgment entered against Defendant Eyman, in August 2002, the staff of

6 the Washington State Public Disclosure Commission (PDC) became aware that Defendant
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Eyman solicited personal payments from political supporters to enable his continued work on

8 initiative campaigns. Id. ¶ 20. In these written solicitations, Defendant Eyman promised
9 anonymity to contributors. He asked that payments be directed to "Tim Eyman, Taxpayer
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Advocate," and sent to Defendant Eyman's home address. Id. ¶ 21.

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On August 13, 2002, PDC staff sent a letter to Defendant Eyman, cautioning him that his

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written solicitations constituted political committee activity. Id. ¶ 22. Staff instructed Defendant

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Eyman that if he expected to make such solicitations, he was required to register the "Tim

14 Eyman, Taxpayer Advocate" political committee and file contribution and expenditure
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disclosure reports. Id. As an alternative, PDC staff instructed Defendant Eyman that payments

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to further his initiative campaign work could be reported as in-kind contributions to his registered

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ballot proposition committees. Id. The letter reminded Defendant Eyman that he was enjoined

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by court order from serving as a political committee treasurer. Id. In an interview under oath

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with a PDC investigator on July 31, 2003, Defendant Eyman acknowledged PDC staff's 2002

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advice, and did not dispute it: "I made an assumption that the Public Disclosure Commission

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wasn't purposely trying to sabotage me by giving me bad advice. I assumed they were giving

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me good advice." Id. ¶ 23.

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Despite this acknowledgement, and in contravention of the law and PDC staff

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instructions, over the nearly two decades that followed, Defendant Eyman continued to solicit

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and accept concealed payments and contributions to further his work on initiative campaigns.

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Id. ¶ 24. He failed to disclose this contribution activity as required by state law. Id. As detailed
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

4

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360).753-6200

 ~a.

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below, despite the judgment against him, Defendant Eyman continued to scheme to make
concealed payments to himself from political committee funds by funneling those payments
through third parties. Id.

I:

2010 Concealment and Personal Use Schemes: Initiative 1053
Defendant Eyman's discovery responses in this case include a letter dated May 19, 2010,

to Roy Ruffino, a principal of the signature gathering firm Citizen Solutions, Inc., and a member
of Defendant Citizen Solutions, LLC. Perkins Decl. ¶ 25. In 2010, Citizen Solutions was working
to qualify Defendant Eyman's Initiative 1053 for the ballot. Id. ¶ 26. In the May 19, 2010 letter
I to Mr. Ruffino, unbeknownst to the rest of his committee, Eyman proposed padding the price
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that his own political committee Voters Want More Choices would pay Citizen Solutions per

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signature for I-1053: "We have agreed to have Citizen Solutions collect signatures for $2.00

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each. I am doing my best to raise money from the business community at a rate of $2.50 per

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signature. My goal is to have Voters Want More Choices pay Citizen Solutions the agreed upon

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$2 per sig plus $150,000 so that you have an extra $150,000 to provide to me." Id.1

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On March 12, 2010, Mr. Ruffin sent an email to Defendant Eyman, quoting a price of

16 1 $2.00 per signature for I-1053. Id. ¶ 27. On March 15, 2010 Defendant Eyman forwarded that
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email to donors. However, in the forwarded email, Mr. Ruffino's quote was altered to $2.50 per

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signature, in furtherance of the plan Defendant Eyman described to Mr. Ruffino in the May 19

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letter. Id. ~ 28. At his deposition, held on February 5, 2019, Defendant Eyman refused to say

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whether he altered Mr. Ruffino's email, invoking his Fifth Amendment protections against self-

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incrimination.2 See Ikeda v. Curtis, 43 Wn.2d 449, 458, 261 P.2d 684 (1953) ("When a witness

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in a civil suit refuses to answer a question on the ground that his answer might tend to incriminate

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him, ... the trier of facts in a civil case is entitled to draw an inference from his refusal to so

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1 Defendant Eyman's partners in Voters Want More Choices, Jack and Mike Fagan, both testified that they
were unaware of Defendant Eyman's surreptitiously having their committee overcharged for his own benefit.
Perkins Decl.¶ 47.
2 Defendant Eyman invoked the Fifth Amendment more than 80 times during his deposition. Id. 129.
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY

JUDGMENT

5

`

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100

(360)753-6200

 testify."). Defendant Eyman similarly refused to answer whether the principals of Citizen
Solutions made payments to him following the I-1053 campaign on the same grounds. Id. 29.
I C.

2011 Concealment and Personal Use Schemes: Initiative 1125

In an email sent on May 11, 2011, Defendant Eyman sought information from his
accounting firm concerning the tax requirements connected with financial gifts. Perkins Decl.
¶ 30. On May 13, 2011, he received a response to his inquiry and forwarded it to Citizen
7 Solutions, Inc. principal Edward Agazarm. The forwarded email asserted that a single person
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could make gifts of $13,000 to each of Defendant Eyman's family members without disclosing

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those payments to the Internal Revenue Service. Id.

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In the 2011 election, Defendant Eyman's political committee paid Citizen Solutions, Inc.

11 1 $1,008,000 to gather signatures for Initiative -1125. Id. ¶ 31. Following the 2011 campaign,
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Citizen Solutions' principals made $86,000 in payments to Defendant Eyman, his wife Karen,

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and their three minor children. Payments were made through two $13,000 personal checks from

14 Roy Ruffin, and the remaining $60,000 through cashier's checks purchased by Edward
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Agazarm. None of the checks exceeded the IRS gift reporting threshold of $13,000. Id. ¶ 32.

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Defendant Eyman. is currently in contempt of a court order compelling him to answer

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written interrogatories concerning these payments. Id. 33. In a deposition held February 5 and

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6, 2019, Defendant Eyman refused to answer questions about payments he received from Roy

19 Ruffin and Edward Agazarm, citing his Fifth Amendment protections against self20

incrimination. Id.

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For her part, Defendant Eyman's spouse Karen Eyman testified in her deposition on

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January 25, 2019, that she was not aware that Roy Ruffin or Edward Agazarm had ever given

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her or her children financial gifts.3 Id. ¶ 34. She stated that she did not socialize with Mr. Ruffin

24 or Edward Agazarm. Id. She could not recall ever having a personal conversation with
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3 In Washington gifts are separate property. See In re Marriage of Kile & Kendall, 186 Wn. App. 864,
876-77, 347 P.3d 894, 900 (2015). If these were actually gifts, which of course they were not, then Defendant
Eyman took tens of thousands of dollars that belonged to his wife as her separate property without telling her.

PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

6

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1
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Mr. Ruffino and was not certain that she had ever met Edward Agazarm. Id.
1110

2012/2013 Concealment and Personal Use Schemes: Initiative 1185

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From April 11 — July 6, 2012, Defendant Eyman's political committee and other sponsors

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paid Defendant Citizen Solutions LLC $1,245,475 to gather signatures to qualify I-1185 for the

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2012 ballot. Defendant Eyman's political committee Voters Want More Choices paid $623,325

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of this amount, and other contributors and sponsors paid the remaining $622,150. Perkins Decl.

7. ¶ 35. These contributions and expenditures were the result of solicitations by Defendant Eyman.
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Id. ~35.

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During the I-1185 signature drive, Edward Agazarm contacted Defendant Eyman on May

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1 15, 2012, and again on June 26, 2012 to discuss an increase in the price of initiative signatures.

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Id. ¶ 36. The second email from Edward Agazarm referred to 1270,000 outstanding on the

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signature contract" that was hampering Citizen Solutions' efforts to qualify the initiative.

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Id. ¶ 37. Defendant Eyman agreed on May 15, 2012 that the price should be raised 50 cents per

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signature. Id. He agreed to an additional price increase of $1.50 per signature on June 27, 2012,

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in the final days of the campaign. Id. ¶ 3 8.

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Defendant Eyman's written interrogatory responses state that Edward Agazarm merely

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"suggested" these price increases; the responses fail to identify which agent of Defendant Citizen

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Solutions LLC actually sought a price increase because, though formerly a principal of Citizen

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Solutions, Inc., Edward Agazarm was not a member of Defendant Citizen Solutions LLC.

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Id. ¶ 39. Defendant Eyman's failure to fully answer this interrogatory contributes to his contempt

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of the Court's order compelling his responses. Id.

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Regardless of the justification for an increase in the price paid to Defendant Citizen

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Solutions LLC, Defendant Eyman forwarded Edward Agazarm's May 15, 2012 and June 26,

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2012 emails to contributors, soliciting additional funds to gather I-1185 signatures. Id. 1 40. On

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many other occasions, Defendant Eyman contacted contributors to urgently press for additional

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funds, warning them that without additional payments to Defendant Citizen Solutions LLC,
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

7

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

I-1185 might fail to qualify for the ballot. Id.

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In an email to key fundraisers Greg Hanon and Dan Levine on June 20, 2012, Defendant
Eyman stated,

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It is abundantly clear that the sigs will be there if the $$ are there. To pay for
exactly 300,000 signatures, the signature drive budget is $1,388,000...I have
recently learned that donations received so far (as of last Friday) total $1,197,500.
There is roughly $150,000 in donations not received but waiting to come in (it
was closer to $200,000 but two $25,000 pledges fell through). Again, that's the
budget to hit EXACTLY 300,000. But I must quickly add that there must be a
cushion of $$ for signatures ABOVE THE MINIMUM. We've all invested too
much time and energy and money to be penny-wise but pound-foolish when it
comes to ensuring enough signatures are turned in to guarantee the initiative
qualifies for the ballot[.]

Id. ¶ 41. In the midst of these communications, Defendant Eyman was engaged in a scheme with
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Defendant Citizen Solutions LLC and member Defendant William Agazarm to generate a
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kickback to Defendant Eyman. Id. ¶ 42.
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On June 5, 2012, Defendant Eyman sent an email to Roy Ruffino and Defendant William
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Agazarm, members of Defendant Citizen Solutions LLC, and to Edward Agazarm, offering
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various schemes intended to result in hundreds of thousands of dollars in compensation to
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Defendant Eyman. Id. Although Defendant Eyman preferred an ongoing business partnership in
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which he would share 1/3 of Defendant Citizen Solutions LLC's revenue, as an alternative, he
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proposed that the company pay him $270,000 as a sales commission. Defendant Eyman stated,
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"When it comes to the extra $270k, I'm working hard to get it for myself by having it paid to
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Citizen Solutions." Id. T 43. This $270,000, the identical amount that Edward Agazarm would
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later state was "outstanding on the contract" for I-1185 signatures, was intended to go to
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Defendant Eyman the entire time. Id. Defendant Eyman's statements in the June 5, 2012 email
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showed his awareness that funds being paid to Defendant Citizen Solutions LLC would not be
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used exclusively to fund signature gathering for I-1185, but would be converted to Defendant
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Eyman's personal use. Id. ¶ 44. In an email to Defendant Eyman sent July 8, 2012, Defendant
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William Agazarm stated, "There should'be no reason ... that should prevent you from getting paid
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PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

8

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 I
2

immediately." Id.
On May 21, 2018, Defendant Citizen Solutions LLC's bank produced records to the State

3 documenting the business' financial transactions during the I-1185 signature drive. Id. ¶ 45.
4 Those records show that on July 3, 2012, Defendant Citizen Solutions LLC made its last
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payments to the petitioning firms whose workers had gathered I-1185 signatures. Id. Though all

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signatures had already been gathered and paid for, Defendant Citizen Solutions LLC continued

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to accept payments after July 3, 2012, receiving a total of $242,975 from the Washington Wine

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and Beer Wholesalers, the Association of Washington Business Political Action Committee, and

9 Defendant Eyman's political committee Voters Want More Choices. Id. ¶ 46. Defendant
10 Eyman's committee alone provided $170,825, funded through contributions from individuals,
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businesses, and other entities. Id. ¶ 47. The memo line on Voters Want More Choices' final

12 check. to Citizen Solutions LLC, signed by committee officer Jack Fagan, showed that the
13 payment was intended for "signatures." Id. One hundred percent of the funds that I-1185
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supporters paid to Defendant Citizen Solutions LLC after July '3, 2012 were returned to

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Defendant Eyman in a kickback directed to Defendant Eyman's business, Defendant Watchdog

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for Taxpayers, LLC. Id. T 48.

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Contributors to the I-1185 effort believed their payments were necessary to qualify the

18 initiative for the ballot. They did not intend their payments for signatures to compensate
19 Defendant Eyman. They were not aware that Defendant Eyman was directing payments to
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Defendant Citizen Solutions so that the company could return the funds to Defendant Eyman.

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Had they been aware of Defendants' scheme to misdirect their funds to Defendants Watchdog

22 and Eyman, they would not have contributed to support I-1185. See Declaration of Gary
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Chandler (Chandler Decl.) ¶¶ 7-10,13; Declaration of Greg Hanon (Hann Decl.) TT 11-13, 15-

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19, 21-22; Declaration of John Guadnola (Guadnola Decl.) ¶¶ 11-22.

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On July 8, 2012, Defendant Eyman participated in an email exchange with Defendant

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William Agazarm and Edward Agazarm. Perkins Decl. ¶ 49. The topic of the exchange was
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

9

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 1 Defendant Eyman's efforts to obtain a payment from Defendant Citizen Solutions LLC. Id.
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Defendant William Agazarm assured Defendant Eyman that payment was forthcoming, and in

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doing so alluded to a history of payments from Citizen Solutions Inc. to Defendant Eyman: "My

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first and foremost goal is to ensure that you get paid what is properly owed this year and to

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make it happen promptly." Id. ¶ 50 (emphasis added). Defendant William Agazarm indicated

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that Roy Ruffin, the company's other member, was not aware of the purpose of the payments:

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"While you are trying to avoid telling Roy exactly what the funds are for, you could always tell

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him you are working on `something' with Paul Jacobs (sic) and hoping to grow some national

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recognition from it." Id. In a reply, Defendant Eyman made clear that the true purpose of the

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funds was to fund an initiative signature drive through payments to Paul Jacob; he wrote:

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[P]romised Paul a payment early this week so eager to follow through on that and
get the ball rolling (you said some petitioners want to do it on speculation but
better to get them locked in early). talked to Brian today and he'll have petitions
printed tomorrow (Monday). strike while the iron's hot.

12
13

Id. ¶ 51. On July 11, 2012, Defendant Citizen Solutions LLC made a wire transfer of $308,185
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to Defendant Watchdog. Id. ¶ 52. When asked about the $308,185 payment at his deposition,
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Mr. Ruffin pled the Fifth. Id. ¶ 53. So did Defendant Eyman. Id. ¶ 54.

16
E.

2012/2013 Concealment and Personal Use Schemes: Initiative 517

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As detailed above, Defendant Eyman disclosed to Defendant William Agazarm that the
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true purpose of the payment he sought from Defendant Citizen Solutions LLC was to fund an
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initiative signature drive through payments to Paul Jacob. That initiative was I-517. Perkins
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Decl. ¶ 55. Defendant Eyman similarly disclosed this plan to Jack Fagan and Mike Fagan, his
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fellow officers in the Voters Want More Choices political committee. Id. ¶ 56. However, in that

22
instance he concealed the fact that the funds used to support I-517 came from a kickback he
23
received from Defendant Citizen Solutions LLC funded by overcharges to Voters Want More
24
Choices to qualify I-1185 for the ballot.
25
In a July 14, 2012 email to Jack Fagan and Mike Fagan, Defendant Eyman stated, "Here's
26
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

10

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

what I'd like to do—me personally loan my own money to Paul Jacob's group Citizens in Charge

2

to get I-517 on the ballot (roughly $160,000). It's enough to guarantee that I-517 gets enough

3

sigs by December 31." Id. ¶ 57. Defendant Eyman then proposed a plan through which he would

4 be reimbursed for his payments for I7517 signatures, including through contributions made to
5

Voters Want More Choices. Id. The funds were not Defendant Eyman's "own money," as he

6 described, but instead were funds that 1-1185 supporters paid to Defendant Citizen Solutions
7

LLC to qualify that initiative for the 2012 ballot. Id. ¶ 58. As of the date of his July 14, 2012

8

email, Defendant Watchdog had already made payments totaling $100,000 to Citizens in Charge

9 to fund the I-517 signature drive. Id. ¶ 59. Before the end of October 2012, he would make
10 another $100,000 in concealed payments to Citizens in Charge to support I-517. Id. None of
11' these payments were disclosed to the PDC. Id. ¶ 60. In separate depositions, Jack and Mike
12

Fagan stated that they were previously unaware that Defendant Eyman had carried through with

13

his plan to send funds to Citizens in Charge for I-517 signatures, since they believed they had

14

made clear to Defendant Eyman that he could not be repaid from contributions to Voters Want

15

More Choices. Id.

16

Defendant Eyman also encouraged others to make concealed contributions to support

17 11-517. In a June 13, 2013 email to Mark Baerwaldt, Defendant Eyman solicited tens of thousands
18

of dollars for radio advertisements to support the initiative, stating: "I've never asked you to

19

donate before, but I'm asking

you

to donate to this one ... And just like I did you can donate

20 anonymously through Citizens in Charge." Id. ¶ 61. The same week, Defendant Eyman
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collaborated with Paul Jacob on a fundraising letter dated June 19, 2013, in which they told

22 prospective contributors "your financial support today makes all the difference in seizing this
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opportunity to take Initiative 517 over the finish line in Washington state. I respectfully request

24

a tax-deductible contribution of $10,000 to Citizens in Charge Foundation." Id. ¶ 62. Despite

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this promise, contributions earmarked for electoral political activity such as ballot proposition

26 support are not tax-deductible. Such contributions are also required "to be disclosed under
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

1I

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 I

Washington law; however, neither Citizens in Charge nor Defendant Eyman nor the I-517

2

committee made any such disclosures. Id. T 63.

3

Defendant Eyman had previously expressed interest to Paul Jacob concerning concealed

4

initiative contributions made through an agent. In a December 21, 2011 email to Jacob,

5

Defendant Eyman asked, "who can I contact at Americans for Tax Reform about `pass through'

6'. donations from ATR to our initiatives in WA state?" Id. ~ 64.
7

As of the date of each of these communications, Defendant Eyman was aware that

8

Washington law prohibits the making of contributions through an agent in a manner to effect

9

concealment. On October 19, 2010, Defendant Eyman received and acknowledged written

10

guidance from Public Disclosure Commission staff concerning the concealment prohibition. In

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an email sent that day, PDC staff informed Defendant Eyman that "no committee may conceal

12

the known source of a contribution." Staff then quoted the concealment statute to Defendant

13

Eyman. Id. ¶ 65.

14

F.

2012 Concealment and Personal Use Schemes: Letters to Roy Ruffino

15

As discussed above, at the close of the 2011 campaign for I-1125, Citizen Solutions Inc.

16

principals Roy Ruffin and Edward Agazarm made $86,000 in payments to Defendant Eyman,

17

his spouse, and their three minor children. Perkins Decl. ¶ 66. In a letter dated August 3, 2012,

18

addressed to Roy Ruffino, Defendant Eyman referred to additional payments he had received

19

from Edward Agazarm: $130,000 in total payments he termed "gifts" for 2010 and 2011. Id.

20

Defendant Eyman's August 3, 2012 letter to Roy Ruffino indicates that the additional payments

21

he expected from Roy Ruffino were not optional: "[T]his letter... concerns resolving the 2010

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and 2011 stuff. Eddie provided $130,000 as a financial gift for those two years—you said you'd

23

do the same ... I'd like us to agree on the amount still outstanding and for you to let me know

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your gift payment plan ... You need to come up with one." Id. ¶ 67.

25

On December 13, 2012, Defendant Eyman sent another letter to Mr. Ruffino, pressuring

26

him to provide tens of thousands of dollars in payments to Eyman that year and the next. The
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY

JUDGMENT

12

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100

(360)753-6200

 letter referred to other payments that Ruffino had already made: "You generously gave me $9900

1

►
7 on September 22nd (and a nice bottle of champagne!!) so that leaves $35,100 for the rest of 2012
3

and still $39,000 for 2013... Roy, I ask that you please schedule a few more lunches from now

4

until December 31 st so you can "max gift" by the end of the year... You're making great progress

5

on this and I continue to be extremely grateful for your continued help on it." Id. ¶ 68.

6

Based on Defendant Eyman's banking records produced through discovery, it appears

7

the $9,900 deposit in September 2012 was made in cash. Id. ¶ 69. Despite the communications

8 and other records documenting payments he received from the Citizens Solutions players,
9

Defendant Eyman remains in contempt of a court order compelling him to answer questions

10

about these payments through written discovery. Id. ¶ 70. When asked about the payments at his

11

deposition, Defendant Eyman pled the Fifth. Id.

12

G.

2013 Concealment and Personal Use Scheme: City of Vancouver Ballot Proposition

13

Documents produced in discovery indicate that in 2013, Defendant Eyman spearheaded

14

an effort to challenge the City of Vancouver's decision not to place a measure concerning light

15 rail funding on the local ballot. Perkins Decl. ¶ 71: In a February 3, 2013 email to initiative
16

activist Debbie Peterson, Defendant Eyman provided language for Peterson to use in soliciting

17

funds for the legal challenge, including a budget of $20,000 for legal services. Id. In this email

18

and in several others sent the same month, Defendant Eyman falsely stated that monetary and

19 in-kind contributions related to a pre-election legal challenge on a ballot proposition are not
20 reportable political contributions, and may be made anonymously. Id. ¶ 72. Regardless of
21

whether ,this assurance of anonymity was correct, Defendant Eyman continued to press

22

fundraising for the legal challenge as the number one priority. Id.
Defendant Eyman's banking records show that in 2013, Defendant Eyman received

23
24

11

$14,982 in payments from Stephen Pidgeon, the attorney retained to work on the legal challenge.

25

Id. T 73. This amount represents nearly 3/4 of the amount that Defendant Eyman publicized as the

26

legal services budget for the Vancouver ballot proposition effort. Id.
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

13

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 1

In his written answers to discovery, Defendant Eyman acknowledges receiving payments

2

from attorney Stephen Pidgeon, a vendor to a political committee. Id. T 74. Defendant Eyman

3

describes these payments as compensation for services Defendant Eyman performed for

4

Pidgeon—specifically, "securing plaintiffs" and "fundraising." Id. As in the 2012 campaign for

5

I-1185, in 2013 Defendant Eyman raised funds for a ballot proposition committee to pay its

6

vendor, with the understanding that that vendor would remit a significant payment back to

7

Defendant Eyman for his personal use. Id.

8

H.

2013 — 2018 Additional Concealed Payments for Political Work

9

From 2013 - 2018 Defendant Eyman continued to solicit and accept concealed payments

10

from hundreds if not thousands of sources. Perkins Decl. ¶ 75. The payments were cast as

11

compensation to Defendant Eyman for his work on initiative campaigns, tax-deductible

12

donations to Citizens in Charge earmarked for the benefit of Defendant Eyman and his family,

13

and even as fraudulent charges for consulting work that Defendant Eyman did not perform. Id.

14

T 76. In a fundraising solicitation to Terrence "Lee" Zehrer dated March 10, 2014, Defendant

15

Eyman stated,

16
17
18
19

I'm scrambling because my compensation disbursement for the year was $37,000
in January (ugh!) ... I was recently talking with an ally of mine who heads up a
5016 Foundation (their mission is protecting the initiative process in the states
that have it). Donations to his group are tax deductible and he said he'd provide
a dollar-for-dollar payment to me personally for any money received (up to a
maximum of $50K). I thought of you immediately.

Id. ¶ 77.
20
In an April 7, 2014 letter to Clyde Holland, Defendant Eyman detailed his successes in
21
passing ballot initiatives, and discussed the sources of compensation for his political work
22
throughout several years. Id. ¶ 78. He solicited Holland for compensation: "The only reason
23
we've been successful over the years is because of the support of successful benefactors. I ask
24
25

that .you please help today so I can continue." Id. In response, Holland approved a $1,000
payment to Defendant Eyman "towards your compensation." Id. Defendant Eyman then

26
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

14

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 I

succeeded in pressuring Holland to increase this payment to $5,000. Id. On May 23, 2014,

2

Holland's staff directed a $5,000 check to Defendant Eyman's home address, at the instruction

3

of Defendant Eyman. Id.

4

In an August 10, 2014 solicitation emailed to dozens of supporters, Defendant Eyman

5

touted his latest project, an initiative to the Legislature that would require a uniform statewide

6

minimum wage. Id. ¶ 79. He coupled this information with a pitch for personal compensation:

7

"I'm NOT asking you to donate to this effort. I'm sending you this to show you that as long as

8

you continue to support me and my family, I will be able to take on these important

9

battles ... Thank you for being a benefactor to me and my family. I really appreciate it." Id..

10
11
12
13
14
15

In a March 9, 2015 solicitation to Suzie Burke, Eyman requested a contribution to the
initiative he was then supporting, and went on to say:
In addition, and for the rest of the year, I'd ask that every time you're inspired to
give more money to this effort, that you send a tax deductible donation to Citizens
in Charge Foundation (see enclosed form). Last year, you donated $5,000 to them
(all tax deductible) — I hope you can do that or more this year. And just like last
year, the same amount you donate to their Foundation will eventually go to
helping me and my family.
Id. ¶ 80.

16
In a fundraising email sent to Kemper Freeman on September 22, 2016, Defendant
17
Eyman described three options for contributing:
18
19
20
21

Last December, when my wife was in the hospital, you called me and said you'd
be good with another `10 for Tim'. I have left messages since then asking for that
'l 0 for Tim' for last year (for qualifying and passing 1-13 66) and another $ l OK
for this year's efforts (for stopping tax increases during session and working hard
to stop ST3 and its tax increases).
Id. ¶ 81. In a deposition held on February 6, 2019, Defendant Eyman refused to answer questions

22
about funds he received through his "10 for Tim" solicitation program, citing Fifth Amendment
23
protection against self-incrimination. Id. ¶ 82.
24
The September 22, 2016 solicitation to Kemper Freeman went on to state,
25
26

You've said that your accounting department is having problems processing
this ... Here are 3 alternatives to provide help for me and my family: 1) Provide a
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

15

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100

(360) 753-6200

 I

3

financial gift for me and my family (like you did in 2014). Make check payable
to `Tim Eyman' and mail it to me ... 2) Provide a tax deductible donation to
Citizens in Charge Foundation. Form is attached. ,3) Provide a payment to me for
consulting, allowing it to be recorded it as a deductible business expense. Invoice
is attached.

4

Id. ¶ 83. There is no discussion of services that Defendants Eyman or Watchdog would perform

5

for Freeman in exchange for this payment. Id.,

2

6

From August of 2013 through October 2018, Defendant Eyman received $110,500 in

7

payments from Citizens in Charge. Id. ¶ 84. Despite the fact that he steered the sources of those

8

funds to Citizens in Charge, Defendant Eyman failed to disclose their payments as contributions

9

connected to the I-517 campaign. Id.

85. Defendant Eyman's "loan" to Citizens in Charge to

10

sponsor I-517 signatures originally totaled $200,000; despite seeking protection from creditors

11

in bankruptcy court, Defendant Eyman stated to the court that he did not intend to collect the

12

nearly $90,000 remaining on the loan. Id. ¶ 86. He cited the State's lawsuit as a pretext to write

13

the debt off, putting the outstanding $90,000 out of reach of his creditors. Id.

14

From July 2012 through June 2017, Defendant Eyman deposited at least $575,822 in

15

donations into his personal accounts from supporters who agreed to compensate him for his work

16 sponsoring initiatives. Id. ¶ 87. These payments included checks with notations indicating
17

payment for Defendant Eyman's work on specific initiative campaigns, including 2014 Initiative

18 1325, 2015 Initiative 1366, and I-869, Defendant Eyman's 2016 initiative to the Legislature
19 concerning transportation funding. Id. ¶ 88. Defendant Eyman acknowledged in bankruptcy
20

court filings that he continues to receive personal payments from supporters to this day. Id. ¶ 89.

21

Although Defendant Eyman accepted PDC staff's guidance in 2002 that payments to

22

support his initiative campaign work are reportable political committee contributions, he failed

23

to disclose these payments as contributions to any of his initiative committees, or to Help Us

24 Help Taxpayers, the committee that Defendant Eyman established and registered to disclose
0

25
26

compensation to him and his fellow initiative committee officers. Id. ¶ 90.
Finally, Defendant Eyman even benefits personally from contributions that are

PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

16

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 1

undisputedly subject to the reporting requirements and restrictions of Washington's campaign 1

2

finance laws. At least four checks Defendant Eyman received in 2014 were made payable to his

3

"2/3 Constitutional Amendment" initiative committee, rather than to Defendant Eyman

4

personally. Nevertheless, Defendant Eyman deposited these payments into his personal account.

5

Id. ¶ 91.

6

Defendant Eyman continues to seek compensation specifically for his political work. On

7

PermanentOffense.com, the website that Defendant Eyman's political committee uses to

8

promote its initiatives and solicit reportable political contributions, he features pleas for personal

9

financial support of Defendant Eyman and donations to fund his legal defense:

10
11
12
13

The challenges before me — the costs to continue fighting together to protect the
taxpayers, raising enough so the $500K that Karen and I loaned to the $30 Tabs
Initiative is repaid, fighting the government's litigation against me. during
bankruptcy, providing for my family after the divorce, earning a living — are much
too great to handle on my own. I hope you'll help me and support me in the years
to come.
Id. ¶ 92. The website highlights Defendant Eyman's resistance to the State's litigation, finishing

14
with another solicitation: "If not for the love and support of all of you, I wouldn't be able to keep
15
getting back up again and again and again..." Id. ¶ 93.
16
V.
17

RELEVANT PROCEDURAL HISTORY

The State filed this enforcement action against the Defendants on March 31, 2017. See
18
Complaint. Based on the serious nature of the allegations made against Defendant Eyman and
19
his long history of flouting campaign finance laws that already resulted in his being permanently
20
barred from acting as a treasurer, the State included an injunctive relief request tailored to prevent
21
Defendant Eyman from continuing this pattern of diverting contributions for his personal use.
22
This request was "[flor temporary and permanent injunctive relief, as authorized by
23
RCW 42.17A.750(1)(h), including but not limited to barring Defendant Eyman from managing,
24
controlling, negotiating, or directing financial transactions of any kind for any political
25
committee in the future." Compl. at 11 (¶¶ 6.1 - 6.4) (emphasis added)..In his motion, Defendant
26
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

17

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100

(360)753-6200

 1

Eyman seeks an advisory opinion that this particular recitation for injunctive relief would be

2

unconstitutional in the event it is sought and imposed by the Court. It would not be.
VI.

3

ARGUMENT

4

Summary judgment is only proper where (1) there is no genuine issue of material fact,

5

(2) reasonable persons could reach but one conclusion, and (3) the moving party is entitled to

6. judgment as a matter of law. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000);
7

CR 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine

8

issue of fact, and all facts and reasonable inferences must be construed in favor of the nonmoving

9

party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

10

For the reasons set forth below, Defendant Eyman falls well short of satisfying his

11

burden. As explained more thoroughly below, his motion should be denied because (1) this Court

12 has the statutory authority to issue an injunction as described

in

the Complaint; (2) Defendant

13

Eyman does not have a First Amendment right to control the finances of a political committee;

14

(3) even if he did have a First Amendment right, it can be limited by this Court to prevent

15

unlawful conduct; and (4) Defendant Eyman's motion is premature and improperly requests an

16

advisory opinion on an injunction that has yet to be requested.

17

A.

This Court Has Statutory Authority To Issue an Appropriate Injunction

18

The State seeks an injunction against Defendant Eyman under the FCPA, which provides,

19

"The court may enjoin any person to prevent the doing of any act herein prohibited, or to compel

20

the performance of any act required herein." RCW 42.17A.750(1)(i). The language of the Act

21

must be "liberally construed to promote complete disclosure of all information respecting the

22

financing of political campaigns ...." RCW 42.17A.001. Defendant Eyman argues that the

23

injunctive relief authorized by the Act is limited to the "imposition of an injunction mandating

24 performance of FCPA obligations." Eyman Br. at 9. His argument is inconsistent with the
25
26

language of the statute and would render the statutory language meaningless.
Essentially, Defendant Eyman asks this Court to find that the only injunction this Court
A

PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

18

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100

(360)753-6200

 can issue is one banning the specific conduct that is illegal by statute, which of course is already
illegal. Defendant's argument is that the legislature included this remedy for the sole purpose of
allowing courts to tell offenders to stop violating the law. However, the injunctive relief
described in the statute is designed to eliminate the opportunity to violate the statute, by stating
that, "The court may enjoin any person to prevent the doing of any act herein prohibited ...."
RCW 42.17A.750(1)(i). It does not state, "The Court may enjoin any person from the doing of
any act herein prohibited."
8

Courts that have issued injunctions under similarly worded statutes have issued broader

9

injunctions than simply requiring compliance with the law. For instance, the Commodity Futures

10

Trading Commission obtained an even broader injunction against a defendant based on statutory

11

language similar to the language of the statute here. The Commodity Exchange Act allows courts

12

to enter an injunction "to enforce compliance with this chapter, or any rule, regulation or order

13 thereunder." 7 U.S.C.A. § 13a-1. Based

on

that language, the District Court permanently

14 enjoined a defendant who committed fraudulent conduct related to commodities futures from
15

performing any of a long list of financial transactions, including "entering into any transactions

16

involving commodity futures." Commodity Futures Trading Comm'n v. Cloud, No. CIV.A. H-

17

10-706, 2011 WL 1157530, at *10-11 (S.D. Tex. Mar. 24, 2011).

18

It is common for Courts to grant injunctions or otherwise limit the roles of defendants

19

after finding that they cannot be trusted to perform those roles without violating the law. See,

20

e.g.,'Hardee v. State, Dep't ofSoc. & Health Servs., 172 Wn.2d 1, 3, 256 P.3d 339, 341 (2011)

21

(affirming Department of Early Learning's revocation of [defendant's] license to operate her

22

home child care business); United States v. Hackney, No. 3 :OOCR00204 EBB, 2007 WL 915798,

23

at * 1 (D. Conn. Mar. 23, 2007) ("[Defendant] was ultimately barred from trading securities and

24

from association with any broker dealer, investment advisor or securities dealer.")

25

This Court has the authority to issue an injunction necessary to ensure Defendant

26

Eyman's compliance with RCW 42.17A. The scope of that injunction will be decided at a later
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

19

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 1

date, when the full extent of Defendant Eyman's malfeasance is clear, but the Court certainly

2

has authority to enter an injunction beyond simply requiring Eyman to comply with the statute.

3'I:

The Injunction Sought by the State Does Not Implicate a First Amendment Right

4

To challenge this Court's authority on constitutional grounds, it is Defendant Eyman's

5

burden to show that the conduct in question is constitutionally protected. See Mt. Healthy City

6

Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977).

7

Despite his burden, Defendant Eyman does not cite a single authority stating that managing

8

financial transactions is constitutionally protected speech. Instead, Defendant Eyman repeatedly

9

misstates the remedy sought by the State in an attempt to mislead the Court into believing that

10

his speech rights are implicated.

11

A few examples of Defendant Eyman's misstating the relief sought include: "a ban, for

12

life, on all manner of permissible conduct...." (Eyman Br. at 10); "...the State's proposed

13

remedy barring Mr. Eyman from permissible conduct of engaging with any political committee,

14

for the rest of his life..." (Id. at 12); "prevent... participation in political action committees" (Id.

15

at 13); "prior restraint on any meaningful participation in initiative campaigns" (Id.); "restrict

16

individuals' ability to join together and speak..." (Id.); "The Lifetime Ban... prohibits him from

17

joining with others for the purposes of associating and speaking." (Id, at 15). All of these

18

statements are pure propaganda intended to mislead the Court.

19

The injunctive relief the State will seek at the end of this case will not "prohibit him from

20

joining with others for the purposes of associating and speaking." The scope of the injunction

21

will be aimed at preventing him from "managing, controlling, negotiating, or directing financial

22

transactions." He agreed years ago that the Court had that power when he agreed to a judgment

23

barring him from acting as a treasurer or as signer on any PAC's financial accounts. See

24

Judgment Against Tim Eyman (State v. Permanent Offense). He was literally banned from

25

having access to the committee checkbook because he could not be trusted with it. However, as

26

the evidence overwhelmingly reveals, Defendant Eyman has circumvented that bar by operating
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

20

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100

(360)753-6200

 illegally outside of the political committee structure and keeping information from the named
2

treasurer and officers. Now the State will merely be asking the Court to enter an injunction with

3

terms sufficient to prevent the Defendant Eyman from having the opportunity to continue his

4 J deceit and concealment in violation of campaign finance laws.
5

Defendant Eyman has provided no authority that suggests that he has a constitutional

6

right to personally manage the financial transactions of a political committee under the First

7

Amendment. The operations of a political committee are regulated under the FCPA to ensure

8

transparency to the public. Eyman agrees, conceding, "The FCPA certainly regulates the conduct

9 of people who do choose to manage, control, negotiate, or direct financial transactions for
10 political committees." Eyman Br. at 10. There can be no dispute that this regulation is
11

constitutional. "Washington's disclosure laws are constitutional on their face because they serve

12 an important government interest and use a narrowly tailored means that does not force
13

overburdensome or duplicative reporting." Utter v. Bldg. Indus. Ass'n of Washington, 182 Wn.2d

14

398, 434, 341 P.3d 953 (2015) (quoting Human Life of Washington Inc. v. Brumsickle, 624 F.3d

15

990, 1013 (9th Cir. 2010). Defendant Eyman does not have a constitutional right to manage the

16

finances of a PAC, so his motion should be denied.

17

C.

18

Even if Eyman Did Have a First Amendment Right To Manage Financial
Transactions, It Can Be Limited by the Court to Prevent Unlawful Conduct

"[T]he First Amendment does not guarantee the right to communicate one's views at all
19
times and places or in any manner that may be desired." Bering v. SHARE, 106 Wn.2d 212, 222,
20
721 P.2d 918 (1986) (quoting Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S.
21
640, 647, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981)). "The Supreme Court has regularly rejected
22
the assertion that people who wish to propagandize protests or views have a constitutional right
23
to do so whenever and however and wherever they please." Id. at 226 (citations and internal
24
quotations omitted.).
25
A court considering a challenge to a state election law must weigh "the character and
26
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

21

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 1

magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments"

2

against " `the precise interests put forward by the State as justifications for the burden imposed

3

by its rule,' taping into consideration `the extent to which those interests make it necessary to

4

burden the plaintiff's rights.' " Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 2063,

5

119 L. Ed. 2d 245 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S. Ct. 1564,

6 11570, 75 L. Ed. 2d 547 (1983)).
7

As described above, Defendant Eyman has failed to establish a First Amendment right

8

to manage financial transactions for a PAC. However, even if he did establish such a right, an

9

injunction limiting his opportunity to violate the FCPA in the future would pass constitutional

10

scrutiny. When a state election law imposes only reasonable, nondiscriminatory restrictions upon

11

First Amendment rights, important state regulatory interests "are generally sufficient to justify

12

the restrictions." Id.; Anderson, 460 U.S. at 788.

13

1.

14

A restriction on Defendant Eyman's handling of financial transactions is
non-discriminatory as to content.

"In determining whether a restriction is content-neutral or content-based, the Supreme
15
Court has held that government regulation of expressive activity is content neutral so long as it
16
is justified without reference to the content of the regulated speech." Collier v. City of Tacoma,
17
121 Wn.2d 737, 749, 854 P.2d 1046 (1993) (quoting Ward v. Rock Against Racism, 491 U.S. at
18
791, 109 S. Ct. at 2753) (internal quotations omitted). As described above, handling financial
19
transactions is not protected speech, but even if it were, the limitation on Defendant Eyman's
20
handling of financial transactions is content neutral. The injunction would bar him from handling
21
financial transactions for any political committee, regardless of its message.
22
23

2.

The State has an important regulatory interest in ensuring Eyman does not
violate campaign finance laws.

24

Both federal and state courts have recognized the importance of the State interest in

25

ensuring transparency and propriety in campaign finance activity. The Ninth Circuit rejected a

26

constitutional challenge to Washington's campaign finance law, finding that the State's
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

22

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 I disclosure requirements advanced an "important and well-recognized governmental interest."

9

Human Life of Washington, Inc, v. Brumsickle, 624 F.3d at 1008. Likewise, in Permanent

3

Offense, 136 Wn. App. at 281-86, the case where Defendant Eyman previously funneled

4 campaign contributions to himself and failed to disclose those payments, the Washington
5• appellate court also rejected a constitutional challenge to the State's campaign finance laws,
6 finding that "the State has a substantial interest in providing the electorate with valuable
7

information about who is promoting ballot measures and why they are doing so." Id. at 284.

8

There is no dispute that the State has an important regulatory interest in limiting Eyman's

9

ability to continue his scheme to violate campaign finance laws. The only question for the Court

10

is whether the State's proposed restrictions are reasonable. Burdick v. Takushi, 504 U.S. at 434.

11

3.

12

There is no " `litmus-paper test for separating those restrictions that are valid from those

13

that are invidious[.]' " Clements v. Fashing, 457 U.S. 957, 963 (1982) (quoting Storer, 415 U.S.

14

at 730). On summary judgment, this Court must presume all of the myriad violations of campaign

15

finance laws listed above in the Statement of Facts to be true. Those facts demonstrate Eyman's

16

absolute refusal to comply with the law, and they are just the tip of the iceberg. This Court has

17

the authority to place reasonable limitations on his conduct and that is what the State will ask.

A limit on Eyman's handling financial transactions for a PAC is reasonable.

18

Defendant Eyman asks this Court to preemptively rule that an injunction is not

19

appropriate in this case, but the content of the proposed injunction is not before the Court, and

20 the behavior that necessitates it has not been fully presented. Decisions in this area of
21

constitutional adjudication is a matter of degree, and involves a consideration 'of the facts and

22

circumstances behind the State's action, the interests the State seeks to protect by placing

23

restrictions on the party subjected to the restrictions, and the nature of the interests of those who

24

may be burdened by the restrictions. Id. (citing Williams, 393 U.S. at 30) (emphasis added).

25

The facts stated above, seen in a light most favorable to the State demonstrate that

26

Defendant Eyman's illegal behavior must be stopped with reasonable limitations on his financial
PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

23

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 I dealings on behalf of political committees. This Court cannot make a reasonableness
2

determination without the full facts and the language of the proposed injunction. This Court must

3

wait for the facts and circumstances at trial before rendering its decision.

4 D.
5

Defendant Eyman's Motion Should Be Denied Because It Improperly Seeks an
Advisory Opinion on a Potential Remedy That Is Not Yet Before the Court

Defendant Eyman's motion should be denied because it seeks an improper advisory
6
opinion on whether a potential remedy that has not yet been presented to this Court would violate
7
the Constitution without the benefit of the full vetting of the facts in this case. "The duration and
8
scope of an injunction are decided on the facts of each case at the trial court's discretion." King
9
v. Riveland, 125 Wn.2d 500, 515, 886 P.2d 160 (1994) (citations omitted) (emphasis added).
10
Because the actual terms of any injunction and the extent of Defendant Eyman's illegal conduct
11
is presently unknown to the Court, there is no justiciable controversy at this time and the
12
requested declaration constitutes an impermissible advisory opinion. See, e.g., Walker v. Monro,
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124 Wn.2d 402, 418, 879 P.2d' 929 (1994).
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Walker is particularly instructive in this regard. There, the Washington Supreme Court
15
dismissed as seeking an improper advisory opinion a declaratory judgment action challenging
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the constitutionality of certain provisions of a voter-approved initiative that had not yet come
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into effect. Walker, 124 Wn.2d at 418 ("We choose instead to adhere to the long-standing rule
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that this court is not authorized under the declaratory judgments act to render advisory opinions
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or pronouncements upon abstract or speculative questions."). This deficiency is even more
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pronounced here because not only has an injunction not yet been imposed, but the specific terms
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of any future injunction that this Court may consider are currently unknown, as are the facts that
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might lead to an injunction.
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To date, the State has not sought and this Court has not considered a request for injunctive
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relief. When and if the State presents a request for injunctive relief to this Court, its scope will
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be shaped by the facts of the case. The only certainty is that at this time no constitutional rights
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PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

24

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 I

have been implicated. The proper time to raise objections to the State's request for injunctive

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relief is when such a request is presented to this Court for a ruling.

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VII. CONCLUSION

Defendant Eyman's motion for partial summary judgment should be denied because the

5 injunction recited in the State's Complaint is authorized by statute and Defendant Eyman's
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constitutional claims are predicated solely on mischaracterizing the terms of that injunction.
DATED this 22nd day of March, 2019.
ROBERT W. FERGUSON
Attorney General

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ERIC
EWM
BA No. 31521
Chief Litigation Counsel, Antitrust Division
S. TODD SIPE, WSBA No. 23203
PAUL M. CRISALLI, WSBA No. 40681
Assistant Attorney General
Attorneys for Plaintiff State of Washington

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PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

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ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360)753-6200

 PROOF OF SERVICE

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I certify that I served a copy of this document, via electronic mail, per agreement, on the
following:
Marl, C. Lamb
The North Creek Law Firm
Attorney for Citizen Solutions Defendants
mark@northereeklaw.com
Tim Eyman
Pro Se
timeeyman@comcast.net
I certify under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
DATED this 22nd day of March, 2019, at Olympia, Washington.

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JE

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SWELL, Legal Assistant

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PLAINTIFF STATE OF WASHINGTON'S
OPPOSITION TO DEFENDANT'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

26

ATTORNEY GENERAL OF WASHINGTON
Campaign Finance Unit
PO Box 40100
Olympia, WA 98504-0100
(360) 753-6200