The Honorable Marshall Ferguson Noted for Hearing: November 26, 2019 at 9:00 AM With Oral Argument 1 2 3 4 5 6 7 STATE OF WASHINGTON KING COUNTY SUPERIOR COURT 8 9 10 11 12 13 14 KING COUNTY; GARFIELD COUNTY TRANSPORTATION AUTHORITY; CITY OF SEATTLE; WASHINGTON STATE TRANSIT ASSOCIATION; ASSOCIATION OF WASHINGTON CITIES; PORT OF SEATTLE; INTERCITY TRANSIT; AMALGAMATED TRANSIT UNION LEGISLATIVE COUNCIL OF WASHINGTON; and MICHAEL ROGERS, 17 18 DEFENDANT STATE OF WASHINGTON’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs, 15 16 NO. 19-2-30171-6 SEA v. STATE OF WASHINGTON, Defendant. 19 I. 20 INTRODUCTION 21 When over 1 million Washington voters approved Initiative 976 to reduce vehicle fees 22 and taxes, they were exercising “[t]he first power reserved by the people” in Washington’s 23 Constitution, Const. art. II, § 1(a). Plaintiffs ask this Court to overturn the people’s decision, but 24 “it is not the prerogative nor the function of the judiciary to substitute what they may deem to be 25 their better judgment for that of the electorate in enacting initiatives.” Amalgamated Transit 26 Union Local 587 v. State, 142 Wn.2d 183, 206, 11 P.3d 762 (2001) (ATU). Rather, the Court’s DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 1 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 role is limited: the initiative is “presumed to be constitutional,” and the Court should invalidate 2 it only if there is “no reasonable doubt that the statute violates the constitution.” Id. at 205. The 3 Court should be especially cautious here, because Plaintiffs seek the “‘extraordinary remedy’” 4 of a preliminary injunction, “which should not be lightly indulged in, but should be used 5 sparingly and only in a clear and plain case.” Kucera v. State, Dep’t of Transp., 140 Wn.2d 200, 6 209, 995 P.2d 63 (2000) (quoting 42 Am.Jur.2d Injunctions § 2, at 728 (1969)). 7 Plaintiffs claim that this is one of the rare “clear and plain cases” where the Court should 8 issue an injunction because “the initiative is unconstitutional and its implementation would cause 9 immediate, devastating, and irreparable impacts.” PI Mot. at 1. These claims are false. Plaintiffs 10 cannot demonstrate beyond a reasonable doubt that I-976 is unconstitutional, and they have 11 failed to show that the measure would cause “immediate, devastating, and irreparable” impacts 12 that would justify an injunction during the short time it would take to resolve the merits of this 13 case, which could likely be done on summary judgment in a matter of weeks. 14 As an initial matter, Plaintiffs cannot show that I-976 is unconstitutional beyond a 15 reasonable doubt because our Supreme Court already rejected nearly all of their arguments as to 16 a very similar measure. Initiative 776, enacted by the voters in 2002, adopted many of the same 17 policies embodied in I-976: limiting state vehicle license fees to $30 and repealing authority for 18 local governments to impose certain vehicle fees and taxes. Pierce Cty. v. State, 150 Wn.2d 422, 19 431-32, 78 P.3d 640 (2003) (Pierce Cty. I). Multiple plaintiffs, including one of the Plaintiffs 20 here—King County—sued, raising nearly every claim presented here: that the measure violated 21 Article II, section 19; exceeded the initiative power; improperly infringed on local authority; and 22 impaired certain bonds. Id. at 428-29. The Supreme Court rejected all of these arguments, id. at 23 430-31, just as this Court should. While the Supreme Court later held that one section of I-776 24 impaired bonds issued by Sound Transit, Pierce County v. State, 159 Wn.2d 16, 148 P.3d 1002 25 (2006) (Pierce Cty. II), here I-976 specifically avoided that concern by delaying the effective 26 date of certain sections affecting Sound Transit until bonds are retired. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 2 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Even if there were no precedent so directly on point, Plaintiffs could not meet their 2 burden of proving I-976 unconstitutional on any of the grounds they claim. Plaintiffs cannot 3 demonstrate that I-976 contains multiple subjects, because all parts of the Initiative relate to one 4 general subject: “motor vehicle taxes and fees.” I-976 Ballot Title. They cannot show that the 5 title misrepresented the subject of the measure, because the title accurately described the measure 6 and gave “notice that would lead to an inquiry into the body of the act.” Pierce Cty. I, 150 Wn.2d 7 at 436. They cannot show that it amended statutes without setting them forth in full, because it 8 set forth the statutes it amended, and there is no requirement to set forth statutes that are repealed. 9 ATU, 142 Wn.2d at 254-55. They cannot show that it impermissibly infringes local authority 10 because local governments can only impose taxes specifically allowed by the State, and the State 11 can always revoke taxing authority previously granted. See Pierce Cty. I, 150 Wn.2d at 440. 12 They cannot show that it exceeds the scope of the initiative power, because their argument turns 13 entirely on inapposite cases about the much narrower local initiative power. See Protect Pub. 14 Health v. Freed, 192 Wn.2d 477, 430 P.2d 640 (2018). And they cannot show that it impairs 15 contracts because they offer no tangible evidence of any impairment. 16 Plaintiffs’ requested injunction is inappropriate for an independent reason: they have 17 failed to show immediate and substantial injury or that the equities favor injunctive relief. 18 Plaintiffs claim that I-976 will lead to immediate losses of transit service, PI Mot. at 2, but 19 Plaintiffs have not shown that this consequence is immediate or inevitable. For example, 20 Plaintiffs claim that Seattle will lose $2.6 million in the first month of I-976’s implementation, 21 “which over time could lead to approximately 175,000 annual transit hours of King County 22 Metro service being cut.” Id. But the City’s transportation budget has increased by over $200 23 million in just the last two years, Declaration of Alan Copsey (Copsey Decl.), Ex. A at 404, and 24 the City recently sold a single property for nearly $150 million, with much of the money available 25 for transportation uses, see Copsey Decl., Ex. B at 17, so the notion that Seattle inevitably must 26 immediately cut bus service is untenable. Even Plaintiffs’ own declaration offered in support of DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 3 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 this claim makes clear that no changes in bus service would actually occur until March, Gannon 2 Decl. ¶ 9, by which time this Court could resolve the merits of this case. 3 More broadly, the whole premise of Plaintiffs’ harm argument is that I-976 should be 4 enjoined to prevent them from losing money, but enjoining I-976 will simply mean that others— 5 Washington taxpayers—lose that same amount of money, money they will save if I-976 is 6 allowed to take effect. Given that Washington voters approved I-976 and the policy consequence 7 of reducing taxes and fees flowing from taxpayers to public agencies, this consequence cannot 8 be seen as a “harm,” but rather precisely what the people voted to adopt. The equities thus tip 9 strongly against granting injunctive relief. 10 For these reasons, the Court should decline Plaintiffs’ request to overturn the will of the 11 voters. Plaintiffs’ weak constitutional claims and evidence of harm make this far from a “clear 12 and plain case” for injunctive relief. Kucera, 140 Wn.2d at 209. 13 14 II. A. STATEMENT OF FACTS I-976 Passed at the November 5, 2019 General Election 15 Initiative Measure No. 976 was approved with 52.97% of the vote in the November 5, 16 2019 General Election. Copsey Decl., Ex. C. More than one million Washingtonians voted in 17 favor of the initiative. Id. I-976 passed in 33 of Washington’s 39 counties, Copsey Decl., Ex. D, 18 including Garfield County, where Plaintiff Garfield County Transportation Authority is located. 19 Compl. ¶ 1. 20 B. Operation of I-976 21 I-976 was passed by Washington voters to reduce motor vehicle taxes and fees. Copsey 22 Decl., Ex. E, § 1. The initiative generally repeals, reduces, and removes state and local authority 23 to impose certain motor vehicle fees and taxes. Id. 24 Sections 2 through 4 of the Initiative amend RCW 46.17 and address “motor vehicle 25 license fees” imposed in that chapter. Section 2 limits “[s]tate and local motor vehicle license 26 fees” to “$30 per year.” Id., § 2. Section 2 defines “state and local motor vehicle license fees” as DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 4 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 “the general license tab fees paid annually for licensing motor vehicles,” but not including 2 “charges approved by voters after the effective date of this section.” Id. 3 Section 3 amends RCW 46.17.350, which sets forth “vehicle license fee by vehicle type.” 4 Id. § 3(1). Under this section, the snowmobile license fee is reduced from $50 to $30, and 5 commercial trailer fees are reduced from $100 to $30. Id. This section further states that the 6 “vehicle license fee” required under this subsection is in addition to other filing fees and any 7 other fee or tax required by law. Id. § 3(2). 8 Section 4 amends RCW 46.17.355, which sets forth “license fee by weight.” Id. § 4(1)(b). 9 This section, which generally applies to trucks, reduces license fees to $30 per year for vehicles 10 under 10,000 pounds. Id. §§ 4(1)(b), 4(5). This section further states that “license fees” and “the 11 freight project fee” in this section are in addition to other filing fees and any other fee or tax 12 required by law. Id. § 4(4). 13 14 Section 5 reduces the electric vehicle fee from $100 to $30 and eliminates an additional $50 electric vehicle fee. Id. §§ 5(1), 5(4)(a). 15 Section 6 repeals several statutes, including: RCW 46.17.365, which imposed a 16 passenger weight fee of between $25 and $72 per vehicle; RCW 82.80.140, which authorized 17 transportation benefit districts (TBDs) to impose annual vehicle fees of up to $100 per vehicle; 18 and RCW 82.80.130, which authorized imposition of a local motor vehicle excise tax to support 19 passenger-only ferries. Id. § 6. Section 6 also repeals RCW 46.68.415, which addressed how the 20 passenger weight fee would be used. 21 22 23 24 Section 7 removes the provision in RCW 82.08.020 that imposed an additional 0.3% sales tax for each retail sale of a motor vehicle. Id. § 7(3). Section 8 adds a new section to the motor vehicle excise tax chapter to require that any motor vehicle excise tax use “base model Kelley Blue book value” of a vehicle. Id. § 8. 25 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 5 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Section 9 amends RCW 82.44.065 to incorporate the Kelley Blue book method for 2 valuing a vehicle when persons paying state or locally imposed taxes appeal the valuation to the 3 Department of Licensing. Id. § 9. 4 Section 10 amends RCW 81.04.140 to eliminate the special motor vehicle excise tax 5 (MVET) that a regional transit authority is allowed to impose as provided in RCW 81.104.160. 6 Id. § 10. Pursuant to Section 16, Section 10 only takes effect after “the regional transit authority 7 complies with section 12 of this act and retires, defeases, or refinances its outstanding bonds.” 8 Id. § 16(1). 9 Section 11 repeals RCW 82.44.035 and RCW 81.104.160. Id. § 11. Pursuant to Section 10 16, Section 11 only takes effect after “the regional transit authority complies with section 12 of 11 this act and retires, defeases, or refinances its outstanding bonds.” Id. § 16(1). 12 Section 12 states that “[i]n order to effectuate the policies, purposes, and intent of this act 13 to ensure that the motor vehicle excise tax repealed by this act are no longer collected, an 14 authority that imposes a motor vehicle excise tax under RCW 81.104.160 must fully retire, 15 defease, or refinance any outstanding bonds” if “[a]ny revenue collected prior to the effective 16 date of this section from the motor vehicle excise tax imposed under RCW 81.104.160 has been 17 pledged to such bonds” and “[t]he bonds, by virtue of the terms of the bond contract, covenants, 18 or similar terms, may be retired or defeased early or refinanced.” Id. § 12. 19 Section 13 amends RCW 81.104.160 to reduce the authority for voter-approved excise 20 taxes for regional transit authorities from eight-tenths to two-tenths of one percent on the value 21 of every motor vehicle owned by a resident of the taxing district. Id. § 13. Pursuant to Section 22 16, Section 13 takes effect on April 1, 2020, if sections 10 and 11 have not taken effect by March 23 31, 2020. Id. § 16(2). 24 25 26 Section 14 requires that the provisions of the act be liberally construed to effectuate its intent, policies, and purposes. Id. § 14. Section 15 provides a severability clause. Id. § 15. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 6 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Section 16 sets forth the effective dates for Sections 10, 11, and 13. Id. § 16. 2 Section 17 provides the title of the Act. Id. § 17. 3 C. Effect of I-976 on Taxpayers 4 The repeal, reduction, and removal of motor vehicle taxes and fees will result in 5 substantial savings to Washington vehicle owners. All vehicles in Washington, unless exempt, 6 must be registered yearly with the Department of Licensing (Department). RCW 46.16A.030, 7 RCW 46.16A.040, RCW 46.16A.110. At registration, all applicable fees and taxes must be paid. 8 RCW 46.16A.040(3), RCW 46.16A.110(1). This currently includes TBD fees authorized under 9 RCW 82.80.140, which allows TBDs to impose additional vehicle fees by vote of the district 10 board (generally the city or county council) or by the public. According to the Municipal 11 Research Service Center, while many TBDs around the State have imposed vehicle fees, only 12 one of these (Seattle’s) was actually approved by voters—the rest were all approved by the TBD 13 board, without a vote of the people. See Copsey Decl., Ex. F. 14 A vehicle owner may renew their registration up to six months in advance of its 15 expiration. Declaration of Jaime Grantham (Grantham Decl.) ¶ 6. Sixty days in advance of the 16 registration expiration, DOL generates a registration renewal notice, which includes the amount 17 of fees and taxes due to renew the vehicle’s registration. Id. The Department sends the renewal 18 notice to vehicle owners 45 days in advance of the registration expiration. Id. 19 During the 13-month period from October 1, 2018, through October 31, 2019, there were 20 approximately 7.9 million motor vehicle original or renewal registration transactions for the 21 classes of vehicles affected by I-976. Declaration of George Price (Price Decl.) ¶ 4. That is 22 approximately 600,000 vehicle registrations per month for classes of vehicles affected by I-976. 23 Id. Following the implementation of I-976, owners of those vehicles will no longer pay numerous 24 vehicle taxes and fees, including the passenger weight fee, Copsey Decl., Ex. E, § 6; the 25 motorhome weight fee, id.; and any TBD fees, id; see also Grantham Decl., Ex. C. In addition, 26 the following fees are all lowered to $30: vehicle weight fee for vehicles under 10,000 pounds, DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 7 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Copsey Decl., Ex. E § 4; electric vehicle fee, id. § 5; snowmobile registration, id. § 3; and 2 commercial trailer fee, id. § 3; see also Grantham Decl., Ex. C. And Washington residents who 3 purchase cars will no longer have to pay the additional 0.3% sales tax on the selling price of the 4 car. Copsey Decl., Ex. E, § 7. 5 As a result of I-976, Washington motor vehicle owners are expected to save roughly 6 $300 million annually in state motor vehicle taxes and fees. Copsey Decl., Ex. G at 2. Motor 7 vehicle owners in the 62 municipalities across the state that impose TBD vehicle fees will save 8 an additional $58 million annually. Copsey Decl., Ex. G at 3. These TBD vehicle fees currently 9 range between $20 - $80 per vehicle. Copsey Decl., Ex. H. 10 D. Local Transportation Revenue Sources 11 Local governments in Washington have a variety of revenue sources available to fund 12 transportation needs, from a wide range of taxes to state and federal grants. See, e.g., RCW 13 36.73.040 (sales and use tax); 82.80.010 (special fuel tax), 82.80.030 (commercial parking tax). 14 These sources can generate substantial amounts of revenue. For example, Plaintiff City of Seattle 15 has an annual transportation budget of approximately $634 million. Copsey Decl., Ex. A at 404. 16 The City’s transportation budget has increased by almost $200 million over the last two years. 17 See id. The City also has received “additional resources to support some new spending in 2020.” 18 Copsey Decl., Ex. B at 17. “For example, the sale of the Mercer Megablock properties and 19 payments to the City associated with the expansion of the Washington State Convention Center 20 have provided significant resources for both housing and transportation investments.” Id. 21 Similarly, King County Metro Transit Department (Metro), which provides public 22 transportation services in King County, has an annual operating budget of more than $949 23 million. Gannon Decl. ¶¶ 3-4. The City of Seattle contracts with Metro to provide transportation 24 services in the Seattle metropolitan area. See id. ¶ 7 and Ex. 1 (Transit Service Funding 25 Agreement between King County and the City of Seattle). 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 8 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 E. Department of Licensing Implementation of Initiative 2 Since the November 5, 2019, General Election, the Department of Licensing has 3 dedicated extensive time and resources to prepare for I-976’s impact on its collection of motor 4 vehicle fees and taxes. Declaration of Jill Johnson (Johnson Decl.) ¶ 5. In just the last two weeks, 5 Department programmers, contractors, and other staff have spent more than 350 business hours 6 preparing for implementation of I-976. Id. ¶¶ 6, 8. Such preparation is primarily to program and 7 test the Department’s vehicle and driver technology system (DRIVES) so that the fees and taxes 8 due upon original or renewal motor vehicle registration are consistent with I-976. The projected 9 cost for the DRIVES programming and development changes is $116,500. Id. ¶ 11. As a result 10 of its significant efforts and expenditures, the Department believes that it will be prepared to 11 implement the provisions of I-976 that take effect December 5, 2019. Id. ¶ 9. 12 F. Background on the Ballot Title Process Generally and for I-976 13 Because some of Plaintiffs’ arguments turn on I-976’s ballot title, the State provides this 14 brief overview of the laws governing the preparation and content of ballot titles, as well as the 15 preparation of the ballot title for I-976. 16 The process for creating a ballot title for an initiative is established by statute. After the 17 sponsor files a proposed initiative with the Secretary of State, RCW 29A.72.010, the Attorney 18 General’s Office must create a ballot title within five business days. RCW 29A.72.050. There 19 are three parts to a ballot title: “(a) A statement of the subject of the measure; (b) a concise 20 description of the measure; and (c) a question in the form prescribed in this section for the ballot 21 measure in question.” RCW 29A.72.050(1). 22 The first two parts of the ballot title are limited to a set number of words. The statement 23 of the subject may “not exceed ten words.” Id. This ten-word statement “must be sufficiently 24 broad to reflect the subject of the measure [and] sufficiently precise to give notice of the 25 measure’s subject matter.” Id. The concise description may not exceed 30 words. Id. This 30- 26 word description must “be a true and impartial description of the measure’s essential contents, DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 9 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create 2 prejudice either for or against the measure.” Id. Once completed, the Attorney General’s Office 3 files the ballot title with the Secretary of State, RCW 29A.72.060, and the Secretary of State 4 notifies the sponsor and other officials and individuals who have requested notice, RCW 5 29A.72.070. 6 Any person may challenge a ballot title prepared by the Attorney General’s Office. RCW 7 29A.72.080. An appeal must be filed in the Superior Court for Thurston County within five 8 business days of the ballot title being filed with the Secretary of State. Id. The Superior Court 9 may re-write the ballot title in a manner that “it determines will meet the requirements of RCW 10 29A.72.060.” Id. The superior court’s decision is final and may not be appealed. Id. 11 I-976 was filed on March 19, 2018. Copsey Decl., Ex. I. I-976 was one of four similarly- 12 titled initiatives submitted by the same proponents during the month of March. Id. (Initiatives 13 967, 969, 975, 976). The Attorney General’s Office filed the ballot title for I-976 on March 26, 14 2018. Declaration of Matthew Segal (Segal Decl.), Ex. B. 15 The sponsor timely challenged the ballot title’s concise description but voluntarily 16 dismissed his challenge before the superior court ruled on the challenge. Id. at Ex. D. The sponsor 17 subsequently gathered the requisite number of signatures to qualify I-976 for consideration, and 18 the Secretary of State referred the initiative to the people in November 2019. See Wash. Const. 19 art. II, § 1(a). 20 III. STATEMENT OF ISSUES 21 Should this Court decline to enjoin I-976 from taking effect where Plaintiffs have not 22 met their burden to show a well-grounded fear of immediate invasion of a clear legal right that 23 will result in actual and substantial injury? 24 25 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 10 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 IV. 1 EVIDENCE RELIED UPON 2 Defendant’s Opposition relies upon the supporting Declarations of Alan Copsey, Jaime 3 Grantham, George Price, and Jill Johnson, the exhibits attached thereto, and the pleadings and 4 records on file in this matter. V. 5 ARGUMENT 6 To obtain an order enjoining I-976 from taking effect, Plaintiffs “must establish (a) a 7 clear legal or equitable right, (b) a well-grounded fear of immediate invasion of that right, and 8 (c) that the act complained of will result in actual and substantial injury.” Huff v. Wyman, 184 9 Wn.2d 643, 651, 361 P.3d 727 (2015). “Failure to establish any one of these requirements results 10 in a denial of the injunction.” Id. The court should evaluate these criteria “‘in light of equity, 11 including the balancing of the relative interests of the parties and the interests of the public, if 12 appropriate.’” Id. (quoting Rabon v. City of Seattle, 135 Wn.2d 278, 284, 957 P.2d 621 (1998)). 13 When “determining whether there is a clear legal or equitable right, ‘the court examines the 14 likelihood that the moving party will prevail on the merits.’” Id. at 652 (quoting Rabon, 135 15 Wn.2d at 285). “A doubtful case will not warrant an injunction.” Id. Here, Plaintiffs have not 16 met their burden to show that they are likely to prevail on the merits of their constitutional claims, 17 nor that I-976 will cause immediate actual and substantial injuries. Moreover, the will of the 18 voters is a substantial interest that weighs heavily against issuing a preliminary injunction 19 pending a determination on the merits. 20 A. 21 22 23 24 25 26 Plaintiffs Are Unlikely to Prevail on the Merits Because They Have Not Shown a Likelihood That I-976 is Unconstitutional Beyond a Reasonable Doubt A law enacted through initiative is presumed constitutional. ATU, 142 Wn.2d at 205. A party challenging the constitutionality of an initiative “bears the heavy burden of establishing its unconstitutionality beyond a reasonable doubt.” Id. “It is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives . . . unless the errors in judgment clearly contravene state or DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 11 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 federal constitutional provisions.” Id. at 206. Plaintiffs raise multiple constitutional challenges 2 to I-976 but, as explained below, none of them are likely to succeed. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. Plaintiffs have not met their burden of showing that I-976 violates Article II, Section 19 Plaintiffs’ first challenge is that I-976 violates article II, section 19, which provides that “[n]o bill shall embrace more than one subject, and that shall be expressed in the title.” Const. art. II, § 19. This provision applies to initiatives in the same way it applies to bills enacted by the legislature. Wash. Ass’n for Substance Abuse & Violence Prevention v. State, 174 Wn.2d 642, 654, 278 P.3d 632 (2012) (WASAVP). There are “two distinct prohibitions” within article II, section 19, both of which Plaintiffs allege are implicated here: (1) the single-subject rule, which precludes an initiative from covering more than one subject; and (2) the subject-in-title rule, which requires that the title of an initiative inform voters of the subject matter of the measure they are voting on. See ATU, 142 Wn.2d at 207. Both requirements are to be “‘liberally construed in favor of the legislation.’” Pierce Cty. I, 150 Wn.2d at 436 (quoting Wash. Fed’n of State Emps. v. State, 127 Wn.2d 544, 555, 901 P.2d 1028 (1995)). I-976 complies with article II, section 19, because, as expressed in its title, I-976 generally concerns motor vehicle related taxes and fees, and all of its provisions relate to that subject and to each other. a. Initiative 976 complies with the single-subject rule The single-subject requirement of article II, section 19 requires that “no bill shall embrace more than one subject.” Pierce Cty. I, 150 Wn.2d at 436. The purpose of this rule is “to prevent the grouping of incompatible measures and to prevent ‘logrolling,’ which occurs when a measure is drafted such that a legislator or voter may be required to vote for something of which he or she disapproves in order to secure approval of an unrelated law.” WASAVP, 174 Wn.2d at 655. The Supreme Court has made clear that this rule does not require legislative bills or initiatives to be narrowly focused, and has upheld initiatives with multiple far-reaching effects. For example, when Washington voters enacted Initiative 1183, they “dramatically changed the DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 12 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 State’s approach to regulating the distribution and sale of liquor in Washington,” WASAVP, 174 2 Wn.2d at 649, including authorizing the private sale of liquor, directing the state to auction off 3 state liquor retail and distribution facilities, modifying the wine distribution system, imposing a 4 variety of new fees on liquor retailers and distributors, changing laws regulating liquor 5 advertising, and providing a $10 million public safety earmark that was not directly linked to 6 any liquor-related issues, id. at 649-51. The Supreme Court concluded that all of these provisions 7 were “germane to the general topic of I-1183, whether that is liquor or the narrower subject of 8 liquor privatization.” Id. at 656, 660. Similarly, when Washington voters enacted Initiative 276 9 in 1972, they adopted the Public Records Act, financial disclosure requirements for elected 10 officials, registration requirements and regulations for lobbyists, and campaign finance reporting 11 requirements. Fritz v. Gorton, 83 Wn.2d 275, 290, 517 P.2d 911 (1974). Although these 12 requirements were “new, novel, . . . most extensive and very, very detailed,” id. at 286, they all 13 related to one overarching topic: “openness in government,” id. at 290. 14 (1) The title is general 15 The starting point for analyzing a single-subject challenge is the title of the measure. Id. 16 “A ballot title consists of a statement of the subject of the measure, a concise description of the 17 measure, and the question of whether or not the measure should be enacted into law.” Id. (citing 18 RCW 29A.72.050). Here, the ballot title for I-976 read: 19 20 Statement of Subject: Initiative Measure No. 976 concerns motor vehicle taxes and fees. 22 Concise Description: This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees; limit annual motor-vehicle-license fees to $30, except voter-approved charges; and base vehicle taxes on Kelley Blue Book value. 23 Should this measure be enacted into law? Yes [ ] No [ ] 21 24 Segal Decl., Ex. B. 25 “When a ballot title ‘suggests a general, overarching subject matter for the initiative,’ 26 Wash. Ass’n of Neigh. Stores v. State, 149 Wn.2d 359, 369, 70 P.3d 920 (2003), it is considered DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 13 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 general, and ‘“great liberality will be indulged to hold that any subject reasonably germane to 2 such title may be embraced.”’ Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 782, 357 P.3d 3 1040 (2015) (quoting ATU, 142 Wn.2d at 207 (quoting DeCano v. State, 7 Wn.2d 613, 627, 110 4 P.2d 627 (1941))). For such measures, “[o]nly rational unity must exist” among the matters 5 included within the measure. Id. “Rational unity exists when the matters within the body of the 6 initiative are germane to the general title and to one another.” Id. at 782-83. There is no violation 7 just because a “general subject contains several incidental subjects or subdivisions.” ATU, 142 8 Wn.2d at 207. 9 Here, the ballot title of I-976 is general. The Statement of Subject broadly identifies the 10 subject of the initiative as “concern[ing] motor vehicle taxes and fees.” This broad description is 11 akin to initiative titles the Supreme Court has previously recognized as general, such as Initiative 12 1183 (“concern[ing] liquor: beer, wine, and spirits”) and SeaTac Proposition 1 (“concern[ing] 13 labor standards for certain employers”). See WASAVP, 174 Wn.2d at 655 (finding I-1183 title 14 general); Filo Foods, 183 Wn.2d at 784 (same as to SeaTac Proposition 1). 15 Contrary to Plaintiffs’ argument, the ballot title for I-976 is not restrictive just because it 16 identifies a particular category of taxes and fees (“motor vehicle taxes and fees”) or includes in 17 the Concise Description a summary of some of the provisions in the initiative that relate to that 18 overarching topic (such as a “specific cap on motor vehicle license fees” or “a particular index 19 of value”). See PI Mot. at 17. The “breadth of topics” covered by I-976 and the “structure of its 20 title” are “not appreciably different from the scope and structure” of the initiatives upheld by the 21 Supreme Court in Filo Foods and WASAVP. See Filo Foods, LLC, 183 Wn.2d at 784 (discussing 22 23 24 25 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 14 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 initiatives upheld in that case 1 and in WASAVP 2). The titles of those initiatives “indicated a 2 general topic and then listed some but not all of [their] substantive measures.” Id. (emphasis 3 added). The fact that the ballot titles at issue in those cases listed “various provisions” did not 4 make them restrictive, where they also indicated a more overarching topic. Id. Likewise, the 5 overarching topic of I-976 is “motor vehicle taxes and fees,” and the fact that the ballot title lists 6 some of the initiative’s various provisions does not make it restrictive. Id. 7 8 9 10 11 12 13 14 15 16 (2) There is rational unity between the title of I-976 and its provisions Because I-976 generally “concerns motor vehicle taxes and fees,” its various substantive provisions need only be “germane” to that subject “and to one another” to survive single-subject scrutiny. Filo Foods, LLC, 183 Wn.2d at 782-83. This is known as the “rational unity” test. Id. As explained by the Supreme Court, the necessary “unity” is found “in the general purpose of the act and the practical problems of efficient administration.” ATU, 142 Wn.2d at 209-10 (quoting State ex rel. Wash. Toll Bridge Auth. v. Yelle, 61 Wn.2d 28, 33, 377 P.2d 466 (1962) (further citations and internal quotation marks omitted)). Subjects “are not absolute existences 1 The ballot title for the measure at issue in Filo Foods stated: 19 Proposition No. 1 concerns labor standards for certain employers. This Ordinance requires certain hospitality and transportation employers to pay specified employees a $15.00 hourly minimum wage, adjusted annually for inflation, and pay sick and safe time of 1 hour per 40 hours worked. Tips shall be retained by workers who performed the services. Employers must offer additional hours to existing part-time employees before hiring from the outside. SeaTac must establish auditing procedures to monitor and ensure compliance. Other labor standards are established. 20 Should this Ordinance be enacted into law? 17 18 21 183 Wn.2d at 783. 22 2 The ballot title for the Initiative at issue in WASAVP stated: 24 Initiative Measure No. 1183 concerns liquor: beer, wine, and spirits (hard liquor). This measure would close state liquor stores and sell their assets; license private parties to sell and distribute spirits; set license fees based on sales; regulate licensees; and change regulation of wine distribution. 25 Should this measure be enacted into law? 23 26 Id. at 784. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 15 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 to be discovered by some sort of a priori reasoning, but are the result of classification for 2 convenience for treatment and for greater effectiveness in attaining the general purpose of the 3 particular legislative act.” Id. Here, all of the substantive provisions in I-976 rationally relate to 4 “motor vehicle taxes and fees” and, additionally, to each other. 5 Plaintiffs claim that the various sections of I-976 do not relate to the topics of limiting 6 motor vehicle license fees to $30 and requiring motor vehicle value to be determined by the 7 Kelley Blue Book, but, in doing so, they misconstrue the title of the measure. See PI Mot. at 17- 8 18, 20, 22-23. As explained above, I-976 broadly pertains to “motor vehicle taxes and fees,” and 9 each of the provisions contained within it relate to that topic. The fact that some provisions 10 address license fees (§§ 2-4), some address electric vehicle fees (§ 5), some address MVETs 11 (§§ 8-13), some address other fees such as TBD vehicle fees or weight fees (§ 6), and some 12 address sales and use taxes (§§ 7, 11, 16) is of no consequence when all of the provisions relate 13 to “motor vehicle taxes and fees.” 14 Plaintiffs place special emphasis on Section 12, which requires Sound Transit to retire, 15 defease, or refinance its bonds issued under chapter 81.112 RCW, to the extent possible, and 16 claim that Section 12 is not rationally related to the rest of the measure, because it does not 17 reduce, limit, or eliminate taxes or fees. PI Mot. at 20. But Section 12 is rationally related to the 18 overarching purpose of I-976 and to Sections 10 and 11, which eliminate Sound Transit’s 19 authority to levy and collect MVETs contingent on Sound Transit’s ability to retire, defease, or 20 refinance its outstanding bonds. It is entirely rational to include this limitation based on the 21 Supreme Court’s decision in Pierce County II, which held that by limiting MVETs that Sound 22 Transit could collect, I-776 unconstitutionally impaired contracts between Sound Transit and its 23 bondholders. 159 Wn.2d at 39. The Supreme Court has recognized that one way (but not the 24 only way) of determining whether subjects are germane to one another and to the general title is 25 to determine whether they are necessary to implement one another. See Citizens for Responsible 26 Wildlife Mgmt. v. State, 149 Wn.2d 622, 637-38, 71 P.3d 644 (2003). Here, inclusion of Section DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 16 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 12 was necessary to implement Sections 10 and 11. Thus, it is rationally related to the general 2 topic of the measure and to the other provisions in I-976. 3 Plaintiffs also claim I-976 violates the single-subject rule because it combines a law of 4 general application that is continuing in nature with a more specific law, citing to ATU, Kiga, 5 and Washington Toll Bridge Authority. See PI Mot. at 22. But I-976 is unlike the measures at 6 issue in those cases, which were invalidated because they contained “dual subjects” where 7 neither subject was “necessary to implement the other,” and, rather, “were so disjointed as to 8 bear no relation to each other.” See Citizens for Responsible Wildlife Mgmt., 149 Wn.2d at 637- 9 38 (distinguishing those cases). In those cases, the Court found incongruent a “broad, long term 10 and continuing” provision with a provision having a more specific impact. Id.; see also ATU, 11 142 Wn.2d at 191 (I-695 contained dual subjects of setting license tab fees at $30 and requiring 12 voter approval of all future state and local tax increases); Kiga, 144 Wn.2d at 827 (I-722 13 contained dual subjects of nullifying specific tax increases and changing future method of 14 assessing property taxes); Wash. Toll Bridge Auth., 49 Wn.2d at 523-25 (Act embraced two 15 subjects because it granted continuing power to build toll roads and provided for construction of 16 a particular toll road). The Supreme Court readily distinguished those cases in the WASAVP 17 decision, where it held there was a “closer nexus” amongst I-1183’s provisions “affecting spirits 18 and wine,” which did not “combine a specific impact of a law with a general measure for the 19 future.” 174 Wn.2d at 658-59. Similarly here, except as necessary to implement its provisions, 20 I-976 does not combine laws providing “one-time” specific impacts with those providing longer 21 term, broader changes. 22 Plaintiffs are also incorrect in suggesting that I-976 “now presents the precise scenario 23 the Pierce County I Court had in mind where article II, section 19 is violated.” See PI Mot. at 24 21. The Court in Pierce County I declined to consider a single-subject challenge based on 25 language included in I-776 which had no legal effect (mere “precatory” language). 150 Wn.2d 26 435-36. As a result, the Court did not have reason to decide whether the inclusion of a provision DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 17 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 that would have actually required Sound Transit to retire its bonds in that initiative would have 2 been consistent with the single-subject rule. Id. As explained earlier, it makes sense that I-976 3 includes a provision requiring Sound Transit to retire, refinance, or defease its bonds to avoid a 4 constitutional impairment issue. Including Section 12 furthered I-976’s overarching purpose to 5 decrease, limit, or eliminate vehicle taxes and fees. 6 b. Initiative 976 complies with the subject-in-title rule 7 Plaintiffs also claim I-976 violates the subject-in-title rule because it supposedly 8 “misleads voters on the provisions of I-976 and fails to disclose its multiple subjects.” PI Mot. 9 at 23. They are incorrect, and their arguments rely on misunderstanding I-976 itself and its ballot 10 title. 11 The subject-in-title requirement of article II, section 19 requires that “no bill shall have 12 a subject which is not expressed in its title.” ATU, 142 Wn.2d at 207. The purpose of this rule is 13 to ensure that members of the voting public are put on proper notice “of the subject matter of the 14 measure.” Id. “To be constitutionally adequate, ‘the title need not be an index to the contents, 15 nor must it provide details of the measure.’” Pierce Cty. I, 150 Wn.2d at 436 (quoting ATU, 142 16 Wn.2d at 217)). Rather, a title is sufficient “‘if it gives notice that would lead to an inquiry into 17 the body of the act, or indicate to an inquiring mind the scope and purpose of the law.’” Id. 18 (quoting YMCA v. State, 62 Wn.2d 504, 506, 383 P.2d 497 (1963)). The “material representations 19 in the title must not be misleading or false,” but “[a]ny objections to the title must be grave and 20 the conflict between it and the constitution palpable” before the Court will “hold an act 21 unconstitutional.” WASAVP, 174 Wn.2d at 661 (quotations omitted). 22 Here, the ballot title to I-976 appropriately notifies the public that it “concerns motor 23 vehicle taxes and fees,” and, generally, would “repeal, reduce, or remove authority to impose 24 certain vehicle taxes and fees; limit annual motor-vehicle-license fees to $30, except voter- 25 approved charges, and base vehicle taxes on Kelley Blue Book value.” I-976 Ballot Title. This 26 was sufficient to “give notice that would lead to an inquiry into the body of the act,” like the DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 18 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 initiative at issue in Pierce Cty. I, 150 Wn.2d at 436. As the Supreme Court has held numerous 2 times, a ballot title can be “broad and general,” and “need not be an index to the contents, nor 3 must it provide details of the measure.” WASAVP, 174 Wn.2d at 660 (collecting cases). 4 Plaintiffs argue that I-976’s ballot title is similar to that which was struck down for I-695, 5 but the ballot titles are distinguishable. See PI Mot. at 26. The ballot title to I-695 only put voters 6 on notice of its impact on taxes, not other charges. ATU, 142 Wn.2d at 227. In contrast, I-976’s 7 ballot title broadly identifies “taxes and fees.” Moreover, the Supreme Court in WASAVP 8 cautioned that it “will not void a law duly enacted by voters” based on “nuances between terms.” 9 174 Wn.2d at 665. See also id. at 661-65 (rejecting challenge that I-1183 should have used the 10 word “tax” instead of “fee” because the challenged portion of the ballot title was “not palpably 11 misleading or false”). 12 Nor is the ballot title misleading or false. Plaintiffs claim that the title misled voters into 13 thinking that any “voter-approved charges in excess of $30 would be retained, or that at least 14 voters would retain the authority to approve such vehicle charges.” PI Mot. at 24. But that is not 15 what the title said. The title first clearly informs voters that the measure would broadly “repeal, 16 reduce, or remove authority to impose certain vehicle taxes and fees,” without mentioning or 17 exempting voter-approved charges. In a separate clause, the title then explains that one specific 18 type of vehicle fee, “annual motor-vehicle-license fees,” would be limited “to $30, except voter- 19 approved charges.” The title thus did not say that all existing vehicle taxes and fees above $30 20 would continue if voter approved, nor that voters in the future could broadly increase vehicle 21 taxes or fees beyond $30; both the limit and the voter-approval option are specific to the fee 22 mentioned in that clause, “motor-vehicle-license fees.” Although space limitations did not permit 23 the ballot title to detail how a “motor-vehicle-license fee” is defined, or how and when this 24 exception for “voter-approved charges” might arise, it was sufficient to give notice that would 25 lead to an inquiry into the text of the initiative. See Pierce Cty. I, 150 Wn.2d at 436-37 (noting 26 that state law imposes a “10-word limit on the ‘statement of the subject,’ and a 30-word limit on DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 19 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 the ‘concise description,’” in concluding that a ballot title “was sufficiently detailed to prompt 2 an inquiring mind to read the initiative for further details” (quoting RCW 29.79.035(1)). 3 Plaintiffs specifically complain that the title references “voter-approved charges,” while 4 the initiative defines those charges as ones “approved by voters after the effective date of this 5 section.” But the title need not (and could not have, given space constraints) detail exactly which 6 “voter-approved charges” would be exempted, so long as it alerts voters of a topic as to which 7 they could look to the text of the initiative if they wished to know more. See, e.g., Pierce Cty. I, 8 150 Wn.2d at 436 (a title is sufficient “‘if it gives notice that would lead to an inquiry into the 9 body of the act’”) (quoting YMCA v. State, 62 Wn.2d at 506). Here, Section 2 of I-976 amends 10 chapter 46.17 RCW to provide that “motor-vehicle-license fees” are limited to $30, except voter- 11 approved charges. See I-976 § 2. Section 2 further defines “motor vehicle license fees” as 12 “general license tab fees paid annually for licensing motor vehicles,” which specifically “do not 13 include charges approved by voters after the effective date of this section.” I-976 § 2. Thus, while 14 the ballot title does not describe the temporal limitations of voter-approved changes, Section 2 15 clearly does. And the ballot title clearly informs voters that I-976 would “repeal, reduce, or 16 remove authority to impose certain vehicle taxes and fees,” regardless of whether they were 17 voter-approved or otherwise imposed, which would reasonably prompt a voter to “read the 18 initiative for further details.” See Pierce Cty. I, 150 Wn.2d at 436-37. 19 Plaintiffs claim that it was misleading for Sections 1 and 2 of the Initiative, and, as a 20 result, the ballot title, to inform voters that the $30 cap was subject to “voter-approved” increases, 21 when, at the same time, Section 6 repealed the authority for TBDs to levy voter-approved vehicle 22 fees. See PI Mot. at 24 (referring to Section 6’s repeal of RCW 82.80.140, which refers to RCW 23 36.73.067(6)). But Plaintiffs incorrectly conflate the TBD vehicle fees authorized in RCW 24 82.80.140 with the motor-vehicle-license fees imposed in RCW 46.17.350 and .355. By its own 25 language, RCW 82.80.140 distinguishes the TBD “vehicle fees” authorized in that section from 26 the “vehicle license fees” authorized under RCW 46.17.350 and .355. RCW 82.80.140 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 20 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 (authorizing the imposition of an “annual vehicle fee” to be imposed on vehicles “subject to 2 vehicle license fees”). Similarly, RCW 46.04.671, which defines “vehicle license fees” for 3 purposes of Title 46, makes clear that the term “does not include . . . taxes and fees collected by 4 the department [of licensing] for other jurisdictions,” such as TBDs. In short, although motor- 5 vehicle-license fees under chapter 46.17 RCW and TBD vehicle fees approved under RCW 6 82.80.140 are collected together, they are two separate fees. Notifying voters, as the ballot title 7 did, that the measure limited “motor-vehicle-license fees to $30, except voter-approved charges,” 8 was not misleading or false given that TBD fees are separate and would not be subject to the 9 voter-approval exception. 3 10 For the same reason, the repeal of the authority to submit MVETs to voters is not in 11 conflict with the reference to voter-approved charges for motor-vehicle-license fees. See PI Mot. 12 at 25 (discussing Section 6’s repeal of RCW 82.80.130 and 81.104.160). MVETs are taxes that 13 are separate and distinct from motor-vehicle-license fees. The title describing the $30 cap and 14 voter approval exception for “motor-vehicle-license fees” did not mean that they would also 15 apply to distinct taxes. 16 Finally, while I-976 does not specify how voters could approve charges above the $30 17 cap on motor-vehicle-license fees in the future, that does not make the ballot title misleading. 18 There are several ways that voters in the future could approve such charges, including by 19 statewide initiative, Const. art. II, § 1(a), by voting on charges referred to the people by the 20 legislature, Const. art. II, § 1(b), or if the legislature or people subsequently approved legislation 21 allowing public votes at the local level to increase motor vehicle license fees. Thus, Plaintiffs 22 23 24 25 26 The distinction between “vehicle license fees” collected under chapter 46.17 RCW and “vehicle fees” collected by TBDs is also constitutionally important. Article II, section 40 of the Constitution requires that: “All fees collected by the State of Washington as license fees for motor vehicles … shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes” (emphasis added). But state law allows “vehicle fees” collected by TBDs to be used for non-highway purposes. See, e.g., RCW 36.73.020 and 36.73.015(6) (together allowing TBDs to fund “high capacity transportation, public transportation, and other transportation projects and programs”). Thus, if “vehicle fees” under RCW 82.80.140 were not distinct from “vehicle license fees,” it would call into question the constitutionality of using the fees for non-highway purposes. 3 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 21 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 are simply incorrect to assert that “I-976 actually eliminates any possibility of” a future public 2 vote to impose motor-vehicle-license fees beyond $30. PI Mot. at 24. 3 In sum, I-976’s ballot title accurately informs voters as to the general impacts of the 4 measure (to “repeal, reduce, or remove authority to impose certain vehicle taxes and fees,”), and, 5 more specifically, that one type of fee (“motor-vehicle-license fees”) would be limited to $30, 6 absent voter-approved charges regarding that fee. This is neither deceitful nor misleading. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Plaintiffs have not met their burden of showing that I-976 violates Article II, Section 37 I-976 complies with the Washington Constitution’s requirement that a law must “set forth at full length” an “act revised or the section amended.” Wash. Const. art. II, § 37. Plaintiffs’ arguments rely on reasoning rejected by the supreme court and on an erroneous reading of I-976. Specifically, repeal of a statute is outside the scope of article II, section 37, and any impacts of that repeal do not implicate article II, section 37 so long as those impacts are “clear.” ATU, 142 Wn.2d at 254-55. I-976 repealed the authority of TBDs to impose a vehicle fee. I-976, § 6(4). From this repeal, it was clear that exceptions in RCW 36.73.040 and RCW 36.73.065 involving “the vehicle fee authorized in RCW 82.80.140” would no longer apply. There was no “fraud or deceit” that would implicate article II, section 37. See Retired Pub. Emps. Council of Wash. v. Charles, 148 Wn.2d 602, 634, 62 P.3d 470 (2003). Additionally, Plaintiffs simply misread I-976 when they contend that it repeals fees in chapter 46.17 RCW. I-976 clearly identifies the fees that its repeals. Under the plain language of I-976, the additional fees in chapter 46.17 RCW remain in effect, except as repealed by other provisions of I-976. See, e.g., I-976 at § 3(2) (retaining language that “[t]he vehicle license fee required in subsection (1) of this section is in addition to . . . any other fee or tax required by law”). The state supreme court rejected an argument based on an almost identical misreading of a prior initiative. ATU, 142 Wn.2d at 255. 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 22 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 2 3 For these reasons, Plaintiffs cannot show a likelihood of success on their claims that I976 violates article II, section 37 of the Washington Constitution. a. I-976’s repeal of RCW 82.80.140 complies with Article II, Section 37 4 Plaintiffs’ argument related to I-976’s repeal of RCW 82.80.140 lacks merit. In essence, 5 Plaintiffs contend that the repeal of RCW 82.80.140 affects RCW 36.73.040 and RCW 36.73.065 6 and, therefore, I-976 was required to set those provisions out in full. The supreme court rejected 7 this reasoning in ATU. 8 The supreme court’s decision in ATU disposes of Plaintiffs’ argument concerning the 9 effect of the repeal of RCW 82.80.140. In ATU, the court first held that “repealers are not within 10 art. II, § 37 whether the act is complete or not.” Id. at 254. So Plaintiffs cannot—and do not— 11 argue that I-976 was required to set out the text of the repealed statute, RCW 82.80.140. Plaintiffs 12 do argue, however, that the repeal of RCW 82.80.140 has an impact on RCW 36.73.040 and 13 RCW 36.73.065, and the non-disclosure of that impact in the text of I-976 violates article II, 14 section 37. ATU rejected a nearly identical argument. In ATU, the challengers argued that the 15 repealer had “an enormous impact on existing laws which is not disclosed in violation of art. II, 16 § 37.” Id. The supreme court rejected this argument on the basis that the consequence of the 17 repeal was “clear” and the initiative was therefore complete. Id. at 255. 18 Similarly here, the impact of the repeal of RCW 82.80.140 on RCW 36.73.040 is clear. 19 In setting out the general powers of TBDs, RCW 36.73.040 provides that “a district is authorized 20 to impose” three types of “taxes, fees, charges, and tolls.” One of those is “[a] vehicle fee in 21 accordance with RCW 82.80.140.” RCW 36.73.040(3)(b). The repeal of RCW 82.80.140 makes 22 it apparent that, following implementation of I-976, no such vehicle fee is authorized. 23 The impact of the repeal of RCW 82.80.140 on RCW 36.73.065 is also clear. The 24 operative provision of RCW 36.73.065 requires majority approval of “taxes, fees, charges, and 25 tolls” imposed by a TBD. RCW 36.73.065(1). The statute provides certain limited exceptions. 26 Three of those exceptions allow, in limited circumstances, a TBD’s governing board to impose DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 23 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 a “vehicle fee authorized in RCW 82.80.140.” RCW 36.73.065(4)(a)(i)-(iii). Additionally, RCW 2 36.73.065(3) prohibits increases in taxes, fees, charges, or tolls with certain exceptions. Two of 3 those exceptions relate to “the vehicle fee authorized by RCW 82.80.140.” RCW 36.73.065(3). 4 Just as in ATU, “[i]t is clear . . . that with the repeal of” RCW 82.80.140, the authority of a TBD 5 to impose the vehicle fee authorized by RCW 82.80.140 “would be affected.” 142 Wn.2d at 255. 6 It is further clear that the impacts on RCW 36.73.040 and RCW 36.73.065 do not 7 implicate the purposes underlying article II, § 37. The purposes of the constitutional provision 8 are, among other things, “to make sure that the effect of the new legislation is clear,” to “ensure[] 9 that the legislature is aware of the legislation’s impact on existing laws,” and “to ensure that 10 ‘[c]itizens or legislatures must not be required to search out amended statutes to know the law 11 on the subject treated in a new statute.’” El Centro de la Raza v. State, 192 Wn.2d 103, 129, 131, 12 428 P.3d 1143 (2018) (citations omitted). Here, voters reading I-976 would have seen that it 13 removes a TBD’s authority to impose vehicle fees. See I-976, § 6(4). As a result, the references 14 to such fees in other laws, such as RCW 36.73.040 and RCW 36.73.065, would no longer apply. 15 Anyone reading RCW 36.73.040 and RCW 36.73.065 will not “be required to search out 16 amended statutes”; they need only consult the express references included in those statutes to 17 know that the exceptions referencing RCW 82.80.140 no longer apply. El Centro de la Raza, 18 192 Wn.2d at 131. No “thorough search” is required. Id. 19 In short, the repeal of RCW 82.80.140 and any incidental impact on RCW 36.73.040 and 20 RCW 36.73.065 is consistent with article II, section 37, the purposes underlying that provision, 21 and the supreme court’s jurisprudence. 22 23 24 25 26 b. I-976 does not affect the additional fees in RCW 46.17, so Article II, Section 37 is not implicated Plaintiffs’ second argument related to article II, section 37 is based on a misreading of I976. Plaintiffs assert that I-976 “effectively repeals” numerous fees established in chapter 46.17 RCW “without even a reference.” PI Mot. at 29-30. The premise of this argument is incorrect. I- DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 24 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 976 does not repeal the fees identified in Plaintiffs’ motion. The fees that I-976 does repeal are 2 set forth in full in compliance with article II, section 37. 3 The fees required by various provisions in chapter 46.17 RCW remain in effect, except 4 for those repealed or amended by I-976. Section 2 of I-976 adds a section to chapter 46.17 RCW 5 that provides that “motor vehicle license fees may not exceed $30 per year for motor vehicles.” 6 This refers to the “vehicle license fee” under chapter 46.17 RCW, such as in RCW 46.17.350, as 7 reflected in Section 3 of I-976. Section 3 makes reductions such that no “vehicle license fee by 8 type” exceeds $30. Section 3 sets forth RCW 46.17.350 in full, including subsection (2), which 9 provides that “the vehicle license fee required in . . . this section is in addition to . . . any other 10 fee or tax required by law.” (Emphasis added.) I-976 does not amend subsection (2). The result 11 is that other fees or taxes required by law—including the provisions identified in Plaintiffs’ 12 motion—remain in effect. 13 Plaintiffs’ argument was rejected in ATU. In ATU, “[a]micus League of Women Voters” 14 argued “that persons considering I-695 alone would conclude that they would have to pay only 15 a $30 license fee, but in fact some other fees would have to be paid.” 142 Wn.2d at 255. Based 16 on that, the amicus curiae argued that the initiative was unconstitutional because “I-695 neither 17 repealed these fees nor disclosed them to voters.” Id. The supreme court rejected this argument, 18 stating that “[t]he fees identified by Amicus League of Women Voters are not affected by I- 19 695.” Id. at 255. That same reasoning applies here. Plaintiffs’ argument regarding the fees in 20 chapter 46.17 RCW lacks merit because those fees are not affected by I-976. Because they were 21 not affected, article II, section 37 did not require that they be set out in I-976. 22 23 24 25 26 3. Plaintiffs have not met their burden of showing that I-976 unconstitutionally infringes on local authority By enacting I-976, the people exercised their constitutional power to rescind some of the taxing authority of TBDs. The state supreme court expressly recognized the people’s power to do this in Pierce County I. 150 Wn.2d at 440. A TBD cannot, by obtaining approval from the DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 25 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 local electorate, deprive the State of its constitutionally-granted legislative power. Plaintiffs’ 2 argument is contrary to fundamental principles in the Washington Constitution. As such, they 3 have not shown a likelihood of success on this argument. 4 The relationship between the State and municipalities, such as TBDs, is set forth in the 5 Washington Constitution and statutes. See, e.g., Wash. Const. art. XI, §§ 4, 11, 12; ch. 36.73 6 RCW. It is firmly established that “[m]unicipal corporations have no inherent power to tax.” 7 Watson v. City of Seattle, 189 Wn.2d 149, 166, 401 P.3d 1 (2017). Instead, they are “dependent 8 upon legislative grant for their enjoyment of such power.” City of Wenatchee v. Chelan Cty. Pub. 9 Util. Dist. No. 1, 181 Wn. App. 326, 335, 325 P.3d 419 (2014) (quoting Alfred Harsch, The 10 Washington Tax System—How It Grew, 39 Wash. L. Rev. 944, 950 (1965)). “The legislature— 11 or the people legislating by initiative—may rescind by general laws the authority previously 12 granted.” Pierce County I, 150 Wn.2d at 440. 13 I-976 permissibly rescinds some of the taxing authority previously granted to TBDs. By 14 repealing RCW 82.80.140, the people rescinded the previously-granted authority for TBDs to 15 “fix and impose an annual vehicle fee.” RCW 82.80.140(1). As the state supreme court 16 recognized in Pierce County I, this power is inherent in article XI, section 12 of the Washington 17 Constitution. 150 Wn.2d at 440. 18 Plaintiffs would turn the constitutional relationship between the State and municipal 19 corporations on its head. Under Plaintiffs’ theory, the electorate of a local TBD could deprive 20 the legislature—or the people legislating by initiative—of their constitutional power to rescind 21 a municipal corporation’s taxing authority. That is inconsistent with Washington’s constitutional 22 structure. Indeed, under Plaintiffs’ logic, the State would presumably be unable to preempt local 23 ordinances that were approved by the local electorate. This, too, would be a novel proposition 24 unsupported by case law. 25 Plaintiffs’ reliance on article I, section 19 of the Washington Constitution is misplaced. 26 The provision provides that “[a]ll Elections shall be free and equal, and no power, civil or DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 26 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Wash. 2 Const., art. I, § 19. As its text indicates, this provision is concerned with the manner in which 3 elections are conducted—they must be “free and equal.” Article I, section 19 does not guarantee 4 that a measure receiving local voter approval will remain in effect. The only article I, section 19 5 case cited by Plaintiffs reflects this principle. 4 In Foster v. Sunnyside Valley Irrigation Dist., 102 6 Wn.2d 395, 403-10, 687 P.2d 841 (1984), the article I, section 19 issue concerned who is 7 permitted to vote in irrigation district elections. The Foster case did not address whether article 8 I, section 19 requires that the results of such an election stand in perpetuity, regardless of state 9 law. 10 This Court should decline Plaintiffs’ invitation to upset Washington’s constitutional 11 structure. Under the Washington Constitution, the people have the power to rescind taxing 12 authority that was previously granted to municipal corporations. Pierce Cty. I, 150 Wn.2d at 440. 13 The people’s action in rescinding the authority of TBDs to impose vehicle fees falls squarely 14 within the people’s constitutionally-granted power. 15 16 17 18 19 20 21 22 23 24 25 26 4. Plaintiffs have not met their burden of showing that I-976 unconstitutionally violates separation of powers principles I-976 is consistent with both of the legal principles that Plaintiffs categorize as separation of powers principles. First, Plaintiffs contend that I-976 is inconsistent with three cases addressing the scope of the local initiative power. But the scope of the local initiative power is irrelevant to this challenge to a state initiative. The supreme court has unambiguously held that the two are distinct and the state initiative power is far broader. Protect Public Health, 192 Wn.2d at 477. I-976 is well within the state initiative power. Second, Plaintiffs contend that I-976 improperly delegates the effective date of certain provisions to “an entity other than the legislature . . . based on [that entity’s] judgment.” PI Mot. at 36. But it is well-established that legislation may be conditional on the actions of third parties, even if the underlying act involves 4 Plaintiffs also cite City of Seattle v. State, 103 Wn.2d 663, 670, 694 P.2d 641 (1985). That case does not involve article I, section 19. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 27 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 judgment on the part of the third party. E.g., Brower v. State, 137 Wn.2d 44, 54-55, 969 P.2d 42 2 (1998). I-976 contains a valid contingency regarding the effective dates of certain sections. 3 Plaintiffs thus have not shown a likelihood of success on their separation of powers arguments. 4 a. I-976 is within the scope of the initiative power 5 The scope of the state legislative power is very broad, and “the people’s legislative power 6 is coextensive with the legislature’s.” Coppernoll v. Reed, 155 Wn.2d 290, 299, 119 P.3d 290 7 (2005). “[T]he state constitution is not a grant, but a restriction on the law-making power.” Auto. 8 United Trades Org. v. State, 175 Wn.2d 537, 545, 286 P.3d 377 (2012) (quoting Clark v. Dwyer, 9 56 Wn.2d 425, 431, 353 P.2d 941 (1960)). It follows that the law-making power extends to all 10 matters other than those “prohibited by the state and federal constitution.” Id. 11 As a threshold matter, Plaintiffs’ contentions fail because their motion does not 12 specifically identify any provision in I-976 that allegedly violates separation of powers 13 principles. Do they contend that the legislature cannot impose a cap on vehicle license fees? That 14 it cannot amend existing statutory license fees? That it cannot repeal statutes or parts of statutes 15 that it previously enacted? To articulate each proposition is to refute it; each action is clearly 16 within the scope of the authority vested in the legislature and reserved to the people. See Wash. 17 Const. art. II, § 1. Plaintiffs cannot meet their “heavy burden of establishing” a provision’s 18 unconstitutionality when they fail to even identify the allegedly unconstitutional provision. ATU, 19 142 Wn.2d at 205. 20 Plaintiffs’ reliance on cases involving local initiatives is misplaced. The scope of the 21 local initiative power is dramatically narrower than the scope of the state initiative power. While 22 the state initiative power is limited only by the federal and state constitutions, Auto. United 23 Trades Org., 175 Wn.2d at 545, there are “multiple limits on the local initiative power,” Protect 24 Public Health, 192 Wn.2d at 482 (quoting Spokane Entrepreneurial Ctr. v. Spokane Moves to 25 Amend Constitution, 185 Wn.2d 97, 107, 369 P.3d 140 (2016)). One limit on the local initiative 26 power is that a local initiative cannot be “‘administrative’ in nature.” Glob. Neighborhood v. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 28 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Respect Wash., 7 Wn. App. 2d 354, 392, 434 P.3d 1024 (2019), rev. denied, 193 Wn. App. 1019, 2 cert. pet. docketed, No. 19-474. This limitation is based on considerations unique to the local 3 context. Id. at 392-93 (citations omitted). Each of the three cases that Plaintiffs rely on involves 4 a challenge to a local initiative. See City of Port Angeles v. Our Water-Our Choice!, 170 Wn.2d 5 1, 10, 239 P.3d 589 (2010) (reviewing City of Port Angeles initiative); Bidwell v. City of 6 Bellevue, 65 Wn. App. 43, 46, 827 P.2d 339 (1992) (reviewing City of Bellevue initiative); 7 Ruano v. Spellman, 81 Wn.2d 820, 822-23, 505 P.2d 447 (1973) (reviewing King County 8 initiative). That limitation simply does not apply to statewide initiatives. 9 10 Plaintiffs have not demonstrated that I-976 violates the separation of powers by exceeding the scope of the state initiative power. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 b. I-976 contains a valid contingency regarding the effective date of sections 10 and 11 I-976 is valid contingent legislation. It conditions certain provisions on specified future events. Specifically, the challenged effective dates are conditioned on action by a regional transit authority. I-976, § 16. The supreme court has routinely upheld legislation that is conditioned on action by third parties, even where that action involves the exercise of judgment by those third parties. E.g., Brower, 137 Wn.2d at 54-55; Diversified Inv. P’ship v. Dep’t of Social & Health Servs., 113 Wn.2d 19, 28, 775 P.2d 947 (1989); State v. Storey, 51 Wash. 630, 631-32, 99 P. 878 (1909). Plaintiffs thus cannot show a likelihood of success on their non-delegation argument. “The power to enact contingent legislation has been clearly recognized.” Brower, 137 Wn.2d at 55. The people “may condition the effectiveness of legislation on the acts of a” third party. Id. Contrary to Plaintiffs’ suggestion, a contingency is valid even where the third party’s action or inaction is the product of an exercise of judgment. For example, in Storey, the legislation was conditional upon “10 or more freeholders” making an application for enforcement. 51 Wash. at 631. It was within the judgment of the freeholders to make or not make DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 29 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 such an application. See id. In Diversified Investment Partnership, the continued effectiveness 2 of a state statute was conditioned upon the federal government not finding state law to be in 3 conflict with federal law. 113 Wn.2d at 22. The federal government necessarily exercised 4 judgment in determining whether state law conflicted with federal law. See id.at 22-23. In 5 Brower, the legislation was contingent on a private party entering into an agreement with the 6 Secretary of State to reimburse the state and counties for the cost of a special election. 137 Wn.2d 7 at 51. Whether to enter into such an agreement involved an exercise of judgment on the part of 8 the third party. Despite the underlying exercise of judgment, the supreme court upheld the 9 legislation in each of these cases against a non-delegation challenge. Id. at 56; Diversified Inv. 10 P’ship, 113 Wn.2d at 31; Storey, 51 Wash. at 632. 11 The contingency in Section 16 of I-976 is an unremarkable example of the people 12 conditioning the effectiveness of a provision upon a specified future event. The relevant specified 13 future event is the regional transit authority’s retirement, defeasement, or refinancing of 14 outstanding bonds. I-976 addresses both contingencies—what happens if the regional transit 15 authority does so and what happens if the regional transit authority does not do so. When the 16 regional transit authority complies with the requirement that it “fully retire, defease, or refinance 17 any outstanding bonds issued under” chapter 81.112, 5 then Sections 10 and 11 will take effect. 18 I-976, § 16(1). Alternatively, if the regional transit authority is not able to comply with the 19 requirement by the deadline, then Section 13 will take effect. I-976, § 16(2). The people, in 20 enacting I-976, exercised their legislative judgment and determined that the provisions “would 21 be expedient only in certain circumstances.” Diversified Inv. P’ship, 113 Wn.2d at 28. I-976 22 defines the circumstances under which the provisions will become operative. 23 Under Brower, Diversified Investment Partnership, and Storey, Section 16 of I-976 is a 24 valid contingency and does not improperly delegate legislative authority. Plaintiffs’ argument 25 lacks merit and is not likely to succeed. 26 5 This requirement applies only if two conditions are met. I-976, § 12. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 30 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5. Plaintiffs have not met their burden of showing that I-976 unconstitutionally impairs contracts Plaintiffs also contend that I-976 “raises significant claims regarding impairment of existing contracts across the state.” PI Mot. at 36. Instead of providing specific argument on this issue, however, Plaintiffs generally allege that “I-976 is likely to impair a wide range of contracts statewide, the full extent of which cannot be known at this early stage.” Id. at 37. Such conclusory assertions cannot support the issuance of a preliminary injunction. It is well established that to be entitled to a preliminary injunction, plaintiffs must show “in a factually specific way that the criteria for injunctive relief have been met” as to them. Kucera, 140 Wn.2d at 219 (emphasis added). Plaintiffs have wholly failed to do so here. While Plaintiffs do attach portions of two bond agreements to one of their declarations, King Decl., Exs. D, F, they make no attempt to explain how I-976 impairs these existing contracts in violation of the Contracts Clause. See PI Mot. at 37. Presumably that is because both contracts are “double-barreled,” meaning that the contracts identified by Plaintiffs were pledged with the “full faith and credit” of the cities issuing them; this is just like the bonds at issue in Pierce County I, where the supreme court held that the bonds were not impaired because, among other reasons, the bonds at issue were “double-barreled” and the county had made an “express commitment to the bondholders that they could rely entirely on the full faith and credit pledge.” Pierce Cty. I, 150 Wn.2d at 437-38; see also King Decl., Ex. D, at cover page (“The full faith, credit and resources of the City have been pledged irrevocably for the prompt payment of the principal and interest of the Bonds and such pledge is enforceable in mandamus against the City.”); King Decl., Ex. F, at cover page (“The full faith, credit and resources of the City have been pledged irrevocably for the annual levy and collection of such taxes and the prompt payment of such principal and interest.”). Accordingly, Plaintiffs have not met their burden of showing that I-976 unconstitutionally impairs contracts. DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 31 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 B. Plaintiffs Have Failed to Show an Immediate Invasion of Any Constitutional Right 2 Plaintiffs’ motion also should be denied because they have failed to demonstrate that a 3 “substantial and immediate harm will occur statewide” if the voter-approved I-976 is not 4 enjoined while this Court decides the case on the merits. PI Mot. at 37-38. 5 First, as a threshold matter, what Plaintiffs’ allege as harm in the form of “revenue loss” 6 to themselves, id. at 38, is simply money that Washington motor vehicle owners will keep. While 7 Plaintiffs complain that the majority of Washington voters decided to reduce certain motor 8 vehicle fees and taxes, their alleged “harm” must be seen for what it is: a policy disagreement 9 with the Washington electorate. 10 Second, Plaintiffs’ assertions of harm improperly focus on the long-term loss of revenues 11 that they will purportedly suffer over the next several years as a result of I-976. See, e.g., PI Mot. 12 at 38 (discussing losses to the state over “the next six years”); id. (highlighting reduction in 13 transit grants “in the 2019-2021 biennium”). The pertinent inquiry for purposes of a preliminary 14 injunction, however, is whether Plaintiffs will suffer substantial injury during the limited time it 15 will take this Court to resolve this case on the merits – i.e., in the next few months while summary 16 judgment briefing could occur. In this regard, Plaintiffs have not shown that they will suffer a 17 substantial injury from the loss of revenue during this limited timeframe. 18 For instance, while Plaintiffs allege harm associated with decreased funding to the 19 Multimodal Account, PI Mot. at 38, they acknowledge elsewhere in their brief that there are 20 numerous other funding sources for that account, including “motor vehicle fuel taxes,” “driver- 21 related fees and charges,” and “user charges (ferry fares, tolls).” PI Mot. at 3. I-976 would have 22 no impact on those other funding sources. The same is true with respect to the local government 23 plaintiffs, which likewise have multiple funding sources. See, e.g., Declaration of John Taylor 24 (Taylor Decl.) ¶ 6 (explaining that “[p]roperty taxes make up about 79 percent of [King] 25 County’s road funding”); Copsey Decl., Ex. A at 404 (providing a budget snapshot and details 26 of the City of Seattle’s $634,015,266 transportation budget for 2019). DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 32 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Elsewhere in their brief, Plaintiffs contend that “[i]f I-976 is implemented, by December 2 9, 2019, Metro must eliminate 110,000 hours of service due to the loss of some $32 million in 3 funding.” PI Mot. at 9-10 (relying on Declaration of Rob Gannon). But this claim of harm also 4 lacks force. This contention appears to be based on a contract provision governing “routinely 5 implement[ed] transit service changes” between King County and the City of Seattle, see Ex. 1 6 to Gannon Decl., 2015 Transit Service Agreement at §2.7. Troublingly, this statement ignores 7 other provisions of the contract that allow for “changes and modifications,” including to the 8 scope of transit service, see id. § 10. Thus, nothing in the contract would appear to prevent Seattle 9 from using funds from other sources—such as its recent receipt of nearly $150 million from the 10 sale of a single city-owned property, see Copsey Decl., Ex. B—to pay King County to continue 11 services at current levels while this case is litigated. In any event, as Mr. Gannon’s declaration 12 makes clear, none of Metro’s service changes will actually take place until March 2020, see 13 Gannon Decl. ¶ 9, by which time this Court could resolve the case on the merits. 14 In sum, while Plaintiffs rattle off a laundry list of harms that will allegedly befall them if 15 this Court allows the voter-approved initiative to be implemented, they have not proven that they 16 will be “substantially injured” in the limited timeframe it will take this Court to decide the case 17 on the merits. Accordingly, this Court should order expedited briefing on the merits – not a 18 preliminary injunction. 19 20 21 22 23 24 25 C. The Equities Tip Strongly Against Plaintiffs Denial of Plaintiffs’ motion for preliminary injunction is also warranted because the equities tip strongly against Plaintiffs. See Tyler Pipe Indus., Inc. v. State Dep’t of Revenue, 96 Wn.2d 785, 792, 683 P.2d 1213 (1982) (“[T]he listed criteria [for issuing an injunction] must be examined in light of equity including balancing the relative interests of the parties, and, if appropriate, the interests of the public.”). 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 33 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 First, enjoining a state-wide initiative is strongly against the interests of the public. 2 “Adopted in 1911, the right of initiative is nearly as old as our constitution itself, deeply 3 ingrained in our state’s history, and widely revered as a powerful check and balance on the other 4 branches of government.” Coppernoll, 155 Wn.2d at 297. Here, a majority of Washington voters 5 passed I-976, thereby choosing to reduce or eliminate certain motor vehicle fees and taxes. The 6 public, therefore, has a strong interest in having its “powerful check and balance” implemented 7 as enacted. Id. 8 Second, approximately 500,000 motor vehicle registrations are due for renewal in 9 December 2019. See Grantham Decl. ¶ 8. Pursuant to I-976, Washington residents who register 10 or renew their vehicles after December 5, 2019, should no longer pay the motor vehicle fees and 11 taxes that are reduced or eliminated by I-976 on that date. See supra at 7-8. Plaintiffs, however, 12 attempt to minimize the interest of Washington residents in paying lower motor vehicle fees and 13 taxes, arguing instead about “‘society’s strong interest in efficient tax collection.’” PI Mot. at 40. 14 But that maxim does not apply in a situation like this one, where the taxes at issue have been 15 repealed by a majority of Washington voters in a statewide initiative. Instead, the public has a 16 strong interest in not being forced to be pay the very taxes and fees that a majority of Washington 17 voters just repealed. 18 Third, there has already been an extensive outlay of government resources to allow I-976 19 to be implemented on its effective date. The Department of Licensing, for instance, has already 20 spent hundreds of business hours preparing for the implementation of I-976, and anticipates that 21 the Department will be fully prepared to implement the effective provisions of the initiative by 22 December 5, 2019. See Johnson Decl. ¶¶ 5-14 (discussing the Department’s extensive 23 compliance efforts). 24 Fourth, Plaintiffs argue that there would be no harm to the public if an injunction is issued 25 and later vacated because “members of the public will be entitled to automatic refunds for any 26 overpayments made during the pendency of the injunction.” PI Mot. at 40. But this argument DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 34 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 completely ignores the harm to the public of having to wait for a refund, and the significant costs 2 associated with issuing those refunds. As the Department of Licensing explains, “processing 3 refunds is a time-intensive process involving multiple layers of Department staff review.” Price 4 Decl. ¶ 6. Each refund “take approximately 5 minutes for data entry and calculation and 30 5 seconds to review/approve.” Id. Because the Department would need to process approximately 6 500,000-600,000 vehicle registrations each month, it would take at least 45,000 business hours 7 to issue refunds for each month that an injunction was in place. See id. ¶¶ 5-7. The Department 8 estimates it would need an additional 41.5 full time employees to process such a large amount 9 of refunds. Id at 7. These significant public expenditures also weigh heavily against an 10 injunction. 11 Finally, Plaintiffs plead with the Court that “the ‘detriment to the public’ that would result 12 from even a temporary loss of the revenues at issue cannot be overstated.’” PI Mot. at 41. But 13 this argument lacks force in light of the outcome of the November 5, 2019 General Election. 14 Countless sources informed Washington voters of the impacts of enacting I-976 throughout the 15 election season. 6 Armed with this information, a majority of Washington voters decided to 16 forego the benefits associated with the fees and taxes collected by Plaintiffs in order to pay lower 17 motor vehicle taxes and fees. Ultimately, therefore, because “this potent vestige of our 18 progressive era past must be vigilantly protected by our courts,” Coppernoll, 155 Wn.2d 290 at 19 296-97, this Court should deny plaintiff’s motion for preliminary injunction, allow I-976 to be 20 implemented, and order expedited briefing on the merits in this case. 21 22 23 24 25 26 See, e.g., Copsey Decl., Ex. J, James Drew, Latest Eyman Initiative Cuts Cost of Car Tabs but Hits Transportation Projects Statewide, The News Tribune (Oct. 4, 2019); Copsey Decl., Ex. K, Nicholas Deshais, Tim Eyman-backed Initiative Would Upend State Transportation Funding, The Spokesman Review (Oct. 7, 2019); Copsey Decl., Ex. L, Association of Washington Cities, Logan Bahr & Shannon McClelland, What is Initiative 976 and How Would It Impact Local and State Transportation Systems?; Copsey Decl., Ex. M, Heidi Groover, Cities Try to Prepare for Potential ‘Massive Impact’ if Car-tab Fees Slashed by Initiative 976, The Seattle Times (Oct. 21, 2019); Copsey Decl., Ex. N, Heidi Groover, Car-tab Initiative Fallout: ‘Hunger Games-style’ Budget Fight or ‘Rethink’ of Spending Priorities? The Seattle Times (Oct. 30, 2019). 6 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 35 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 VI. 1 2 3 CONCLUSION For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be denied. DATED this 22nd day of November 2019. 4 5 ROBERT W. FERGUSON Attorney General 6 s/Alan D. Copsey ALAN D. COPSEY, WSBA #23305 ALICIA YOUNG, WSBA #35553 KARL SMITH, WSBA #41988 Deputy Solicitors General P.O. Box 40100 Olympia, WA 98504-0100 alan.copsey@atg.wa.gov alicia.young@atg.wa.gov karl.smith@atg.wa.gov (360) 753-6200 7 8 9 10 11 12 15 LAURYN K. FRAAS, WSBA #53238 Assistant Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 lauryn.fraas@atg.wa.gov (206) 521-5811 16 Attorneys for Defendant State of Washington 17 I certify that this memorandum contains 12,496 words, in compliance with the Local Civil Rules and Order Granting Plaintiffs’ Motion to File Overlength Motion for Preliminary Injunction. 13 14 18 19 20 21 22 23 24 25 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 36 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200 DECLARATION OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I hereby declare that on this day true copies of the foregoing document were filed with the Court and served via CM/ECF and by email upon the following parties: Contacts for Plaintiff King County: Name, Title: David J. Hackett, Attorney David J. Eldred, Attorney Jenifer Merkel, Attorney Erin B. Jackson, Attorney Email: David.hackett@kingcounty.gov David.eldred@kingcounty.gov Jenifer.merkel@kingcounty.gov Erin.Jackson@kingcounty.gov Contacts for Plaintiff City of Seattle: Name, Title: Carolyn U. Boies, Attorney Erica Franklin, Attorney John B. Schochet, Attorney Marisa Johnson, Legal Assistant Email: Carolyn.boies@seattle.gov Erica.franklin@seattle.gov John.schochet@seattle.gov Marisa.Johnson@seattle.gov Contacts for Plaintiffs Washington State Transit Association, Association of Washington Cities, Port of Seattle, Garfield County Transportation Authority, Intercity Transit, Amalgamated Transit Union Legislative Council of Washington, and Michael Rogers: Name, Title: Paul J. Lawrence, Attorney Matthew J. Segal, Attorney Jessica A. Skelton, Attorney Shae Blood, Attorney Sydney Henderson, Legal Assistant Email: paul.lawrence@pacificalawgroup.com matthew.segal@pacificalawgroup.com jessica.skelton@pacificalawgroup.com shae.blood@pacificalawgroup.com sydney.henderson@pacificalawgroup.com DATED this 22nd day of November, 2019, at Seattle, Washington. 22 s/Morgan Mills MORGAN MILLS Legal Assistant 23 24 25 26 DEFENDANT’S OPPOSITION PLAINTIFFS’ MOTION PRELIMINARY INJUNCTION – NO. 19-2-30171-6 SEA TO FOR 37 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200