FILED 1 Honorable Marshall Ferguson 2020 JANMotion 24 04:00 forPM Summary Judgment w/Oral Argument KING COUNTY February 7, 2020 @ 9 a.m. SUPERIOR COURT CLERK E-FILED CASE #: 19-2-30171-6 SEA 2 3 4 5 6 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 8 9 10 11 GARFIELD COUNTY TRANSPORTATION AUTHORITY; et al. Plaintiffs, 12 And 13 16 WASHINGTON ADAPT; TRANSIT RIDERS UNION; and CLIMATE SOLUTIONS, Intervenor-Plaintiffs v. 17 STATE OF WASHINGTON, 14 15 18 19 No. 19-2-30171-6SEA PLAINTIFFS’ CONSOLIDATED OPPOSITION TOTHE STATE OF WASHINGTON’S, PIERCE COUNTY’S, AND CLINT DIDIER’S MOTIONS FORSUMMARY JUDGMENT Defendant And 20 21 22 CLINT DIDIER; PERMANENT OFFENSE; TIMOTHY D. EYMAN; MICHAEL FAGAN; JACK FAGAN; and PIERCE COUNTY, 23 Intervenor-Defendants. 24 25 26 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 TABLE OF CONTENTS I. INTRODUCTION AND RELIEF REQUESTED .............................................. 1 3 II. STATEMENT OF FACTS ................................................................................. 2 4 5 III. STATEMENT OF ISSUES ................................................................................ 2 6 IV. EVIDENCE RELIED UPON ............................................................................. 2 7 V. AUTHORITY AND ARGUMENT .................................................................... 2 8 A. I-976 Violates the Single Subject Rule Particularly Because the Subjects Are Not Germane to Each Other ................................................................... 3 B. I-976’s Deceitful Ballot Title Violates Article II, Section 19’s “Subject in Title” Requirement ..................................................................... 7 C. I-976 Violates Article II, Section 37 ........................................................... 11 9 10 11 12 1. I-976’s repeal of RCW 82.80.140 amends TBDs’ authorizing legislation ............................................................................................... 11 13 14 2. The State’s Inconsistent Positions on Chapter 46.17 RCW’s Additional Fees Illustrate I-976’s Misleading and Confusing Nature ..................................................................................................... 14 15 16 17 D. I-976 Runs Afoul of Article VII, Section 5 Because It Diverts Tax Revenue Levied Exclusively for Transportation Purposes ......................... 16 E. Article II, Section 12 Precludes the Legislature from Withdrawing Vested Local Taxing Authority That Is Being Actively Used for a Local Purpose .............................................................................................. 17 F. I-976 Violates Article I, Section 19 ............................................................ 18 G. I-976 Violates Washington’s Separation of Powers Doctrine .................... 21 18 19 20 21 22 23 24 25 26 27 1. I-976’s Section 12 Intrudes on Administrative Matters in Violation of Article II, Section 1 ............................................................................ 21 2. Constitutional Restrictions on Legislative Interference with Administrative Matters Apply to Both State and Local Initiatives ........ 22 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - i 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 3. Contingent Legislation Does Not Allow for Improper Delegation of Legislative Functions as in Section 16 ................................................... 23 2 3 4 I-976’s Repeal of TBD VLFs Unconstitutionally Impairs Burien’s Bonds .......................................................................................................... 24 5 VI. CONCLUSION ................................................................................................. 26 H. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - ii 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 3 4 5 I. INTRODUCTION AND RELIEF REQUESTED The Washington Constitution contains strong protections to ensure the integrity of the legislative process. Article 2, sections 19 and 37 require complete transparency and truthful disclosure about what laws are being considered. The courts have been steadfast in applying these 6 7 8 9 10 11 12 protections to strike down laws and initiatives that cobble together unrelated subjects, fail to disclose truthfully their subject, and hide how they amend existing laws. Moreover, the framers carefully set limits on the otherwise broad power of the Legislature to prevent interference with local affairs, administrative acts, and elections. I-976 violates all these protections. The ballot title is deceptive and fails to disclose key subjects of the initiative. The initiative combines multiple unrelated subjects ranging from state 13 to local vehicle registration fees, the state sales tax, and general statutory changes, with specific 14 15 one-time efforts to alter local policy. It amends several statutes without setting forth the changes 16 in full. And it reflects a significant intrusion by the state in the decisions of local governments 17 about how to raise and spend local money on local concerns and interferes with two elections. 18 The State’s motion dances around these self-evident problems hiding behind untenable and 19 contradictory interpretations of I-976. Indeed, there is no unified interpretation presented that 20 avoids all of I-976’s constitutional problems. The State denies the obvious untrue and misleading 21 description of I-976 in the ballot title. And the State asserts a scope of state legislative power that 22 23 ignores constitutional limits and allows the state to quash the will of local voters and their elected 24 representatives. Accordingly, the State’s motion for summary judgment should be denied. 25 Instead, for the reasons set forth in Plaintiffs’ Motion, Plaintiffs are entitled to summary judgment 26 striking down I-976 in its entirety. 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 1 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 II. 2 Plaintiffs rely upon the Statement of Facts in section II of Plaintiffs’ Motion for Summary 3 4 Judgment (“Plaintiffs’ Motion”), Dkt. 157. III. 5 III of Plaintiffs’ Motion. 8 IV. 9 10 STATEMENT OF ISSUES As its counterstatement of issues, Plaintiffs rely upon the Statement of Issues in section 6 7 STATEMENT OF FACTS EVIDENCE RELIED UPON The City relies on the Declaration of Jessica Skelton and the pleadings and papers previously filed with this Court in this lawsuit. 11 V. 12 AUTHORITY AND ARGUMENT Plaintiffs are entitled to summary judgment because I-976 contains numerous 13 constitutional violations. As set forth below, the State and the Intervenors fail to set forth any basis 14 15 16 17 to award summary judgment in their favor. A. I-976 Violates the Single Subject Rule Particularly Because the Subjects Are Not Germane to Each Other. The State is not entitled to summary judgment on Plaintiffs’ claim under the single subject 18 19 20 rule. Plaintiffs set out in their Motion the full extent to which I-976 violates the single subject clause of article II, section 19, and incorporate that argument here. Pltfs.’ Mot. Summ. J. at 26- 21 35. In its Motion, the State acknowledges that all provisions of an initiative must be germane not 22 only to the title, but also to each other. See State’s Mot. Summ. J. at 12; City of Burien v. Kiga, 23 144 Wn.2d 819, 826, 31 P.3d 659 (2001). Yet, the State devotes one sentence to whether all the 24 25 subjects in I-976 are germane to one another, and only asserts that section 12 is germane to sections 10 and 11. State’s Mot. Summ. J. at 12. This failure to address the fact that numerous subjects 26 27 within I-976 are not germane to each other is fatal. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 2 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 I-976 contains at least seven disparate subjects, each of which must be both germane to the 2 ballot title, and to one another. Thus, even if this Court accepted the State’s assertions that certain 3 of the initiative’s subjects are germane to the State’s overbroad construction of the ballot title, 4 which it should not,1 that is only half the battle. See Pltfs.’ Mot. Summ. J. at 28-29 (discussing 5 6 successful single subject challenges in Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 7 183, 11 P.3d 762 (2000) (“ATU”), City of Burien, 144 Wn.2d 819, and Lee v. State, 185 Wn.2d 8 608, 374 P.3d 157 (2016)). For example, section 7 of I-976, which the State does not mention, 9 attempts to eliminate a sales tax on motor vehicle purchases, which is not germane to the subject 10 of capping recurring motor vehicle charges at the time of registration. Nor is section 8, relating to 11 12 a valuation schedule that applies only to the Sound Transit MVET, which the State also ignores, germane to the sales tax provision, or to the purported $30 cap. See Pltfs.’Mot. Summ. J. at 33- 13 14 34. 15 The State’s attempt to demonstrate rational unity solely though section 12 also fails. 16 Section 12 purports to require Sound Transit to retire, defease, or refinance outstanding bonds 17 early by collecting additional taxes and reallocating other taxes to debt service, at a cost of 18 hundreds of millions of dollars. Pltfs.’ Mot. Summ. J. at 30-31. This is completely unrelated to 19 purportedly capping certain state vehicle licensing fees or eliminating a statewide sales tax. Id. 20 21 22 23 That Section 12 is a response to the Supreme Court’s holding in Pierce County v. State, 159 Wn.2d 16, 51, 148 P.3d 1002 (2006)(“Pierce Cty. II”) does not create germaneness. Rather than creating a single-subject violation, I-976 could (for example) have deferred the effective date until after the 24 25 26 27 1 Intervenors agree that the State’s characterization of the title is too broad and that the more appropriate characterization is limiting motor vehicle taxes and fees at the time of registration. See Pierce Cty. v. State, 150 Wn.2d 422, 427, 78 P.3d 640 (2003) (“Pierce Cty. I”) (holding I-776’s subject was “limiting . . . charges that motor vehicle owners must pay upon . . . registration” (internal quotations omitted)); Didier Mot. Summ. J. at 10 (characterizing the subject of the title as “limit[ing] state and local taxes, fees, and other charges relating to vehicles”). PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 3 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 bonds were retired by their terms (if such a provision were germane to all other sections of the 2 initiative). 3 4 The State attempts to overcome this deficiency by asserting I-976’s section 12 is “necessary to implement” sections 10 and 11. State’s Mot. Summ. J. at 12; see also Didier Mot. Summ. J. at 5 6 13. As previously discussed, “necessity to implement” is not a panacea that cures all single subject 7 defects. Pltfs.’ Mot. Summ. J. at 31-32. The State cites no case where a court upheld an initiative 8 with multiple subjects simply because one of its provision was purportedly necessary to implement 9 two others. State’s Mot. Summ. J. at 12 (citing only Citizens for Responsible Wildlife Mgmt. v. 10 State, 149 Wn.2d 622, 637, 71 P.3d 644 (2003), which did not address whether the initiative’s 11 12 provisions were necessary to implement one another). Instead, the single subject rule is satisfied only where rational unity exists “among all matters included within the measure….” City of 13 14 Burien, 144 Wn.2d at 826 (emphasis added). Thus, even if section 12 is necessary to implement 15 sections 10 and 11, the State fails to establish rational unity among all the initiative’s subjects. See 16 Am. Hotel & Lodging Ass’n v. City of Seattle, 6 Wn. App. 2d 928, 945, 432 P.3d 434 (2018), 17 review granted, 193 Wn.2d 1008, 439 P.3d 1069 (2019), dismissed, (Oct. 21, 2019) (holding that 18 19 even if one provision of an initiative was necessary to implement another, that did not establish rational unity). 20 21 22 The State relies on Wash. Ass’n for Substance Abuse & Violence Prevention v. State, 174 Wn.2d 642, 278 P.3d 632 (2012) (“WASAVP”), which is distinguishable. The Court held that the 23 initiative satisfied the single subject rule because “spirits and wine share[d] the common distinction 24 of being liquor and ha[d] been governed as such by the same act for decades.” Id. at 659; see also 25 Laws of 1933, Ex. Sess., ch. 62 (creating comprehensive scheme for regulation of distribution, 26 sale, and consumption of liquor in Washington and including “alcohol, beer, wine, and spirits” in 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 4 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 the definition of “liquor”). Here, the State admits that the types of charges encompassed by I-976 2 have always been treated separately under the law. State’s Mot. Summ. J. at 2-3 (conceding that 3 4 motor vehicle taxes and fees authorized under title 46 RCW (state MVET), title 82 RCW (local TBD MVET), and title 81 RCW (Sound Transit MVET) are all “legally distinct”); see also Lee, 5 6 185 Wn.2d at 623 (WASAVP rationale did not apply because initiative’s “sponsors pointed to no 7 history that the legislature ha[d] treated sales tax reductions and constitutional amendments or 8 supermajority requirements together”). 9 The other cases the State relies on are also distinguishable. In Citizens for Responsible 10 Wildlife Mgmt., the relevant initiative outlawed the trapping or killing of any mammal with certain 11 12 body gripping traps and poisons. 149 Wn.2d at 628. The Court held that unlike the subjects in ATU and City of Burien, which were “so disjointed as to bear no relation to each other,” the 13 14 “subjects of trap and pesticide use for animals” were “so related as not to be individual, disjointed 15 subjects.” Id. at 636. Similarly, the initiative at issue in Filo Foods, LLC v. City of SeaTac, 183 16 Wn.2d 770, 357 P.3d 1040 (2015), guaranteed an hourly minimum wage, paid sick leave, tip 17 retention, and a 90-day worker retention policy. Id. at 785. The Court upheld the initiative because 18 19 it found that all of those provisions had the related purpose of establishing minimum employee benefits, including job security. Id. Finally, the portion of Fritz v. Gorton, 83 Wn.2d 275, 517 20 21 22 P.2d 911 (1974), cited by the State is dicta, as the Court “resolve[d]” the single subject challenge, albeit incorrectly, by concluding that article II, section 19 “does not apply to ballot titles of 23 initiative measures.” Id. at 288-91; see also ATU, 142 Wn.2d at 206 (article II, section 19 “applies 24 to initiatives”). 25 26 The State further undermines its “necessary to implement” defense of section 12 by arguing later in its motion, to avoid invalidation under article II, section 37, that I-976 somehow caps 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 5 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 vehicle license fees at $30 while at the same time leaving in place numerous “license fees” in 2 excess of that amount. See, e.g., State’s Mot. Summ. J. at 17. If it is not necessary to implement 3 I-976 to include these numerous statewide fees and charges within the $30 cap, then it cannot be 4 necessary to implement any portion of the initiative to compel Sound Transit to spend hundreds of 5 6 millions of dollars and reallocate its tax revenue in an attempt to reduce one local MVET. 7 In actuality, section 12 of I-976 represents a core concern of the single subject clause dating 8 back to its origins. Lee, 185 Wn.2d at 620 (“The single-subject rule was written into our 9 constitution because ‘there had crept into our system of legislation a practice of engrafting upon 10 measures of great public importance foreign matters for local or selfish purposes….’”) (emphasis 11 12 added). I-976 melds together subjects with a continuing, statewide effect, such as the purported “cap” on vehicle license fees, with matters of singular local concern. Section 12, in particular, is 13 14 admittedly targeted toward a specific local agency and even a specific set of bonds issued by that 15 agency. Pltfs.’ Mot. Summ. J. at 30. The State is, therefore, wrong that I-976 is “not like” other 16 cases finding single subject violations when combining a law of general application that is 17 continuing in nature with a more specific law. State’s Mot. Summ. J. at 12. I-976 is analogous to 18 19 those cases in the most important respects. Like the measures in City of Burien, 142 Wn.2d at 826, and Wash. Toll Bridge Auth. v. State, 49 Wn.2d 520, 523-25, 304 P.2d 676 (1956), I-976 uses a 20 21 22 standalone or onetime local issue and a continuing and general statewide proposition to “logroll” votes together. As emphasized in Lee, even if one could align these distinct subjects with the title 23 of the measure by interpreting the title so broadly as to render its scope virtually limitless, the 24 subjects are still not germane to one another. See Lee, 185 Wn.2d at 622.2 The State is not entitled 25 26 27 As the Lee Court stated: “We will assume that I–1366 has a general title of either ‘taxes’ or ‘fiscal restraint,’ and that the subjects of a current sales tax reduction and either a constitutional amendment or a change to the way all future taxes and fees are approved relate to ‘taxes’ or ‘fiscal restraint.’ Under any iteration, a reduction to the sales tax rate 2 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 6 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 to summary judgment under the single subject clause, but instead summary judgment should be 2 granted to the Plaintiffs. 3 4 I-976’s Deceitful Ballot Title Violates Article II, Section 19’s “Subject in Title” Requirement. 5 Despite the State’s best effort to contort the meaning of the ballot title and the I-976 text, 6 it cannot overcome the ballot title’s self-evident falsities. The State makes no effort to dispute the 7 B. controlling legal rule that a false and misleading ballot title violates article II, section 19 and 8 vitiates the measure. Howlett v. Cheetham, 17 Wash. 626, 635, 50 P. 522 (1897). Such a title 9 10 defrauds voters, leaving them “deceived as to what matters are being legislated upon.” WASAVP, 11 174 Wn.2d at 660. Under the constitution, a voter is under no obligation to ferret out deception in 12 the ballot title.3 13 The ballot title makes two separate false claims by affirmatively representing to voters that 14 I-976 (1) would “limit annual motor-vehicle-license fees to $30” with (2) the exception of “voter 15 approved charges.” Both claims are false and misleading in violation of article II, section 19.4 16 17 18 The False Promise of $30 Car Tabs. The State admits that its interpretation of I-976— which is necessary to avoid an article II, section 37 violation (see Section C, infra)—results in an 19 annual license tab renewal fee that substantially exceeds the ballot title’s promise of a $30 cap. 20 See State’s Mot. Summ. J. at 17 (claiming that various annual registration fees imposed by chapter 21 22 23 24 25 26 27 is unrelated to both a constitutional amendment, which would impact future legislatures, and to the way that future taxes and fees are approved.” 185 Wn.2d at 622 (emphasis in original). 3 Because ballot titles carry the objective imprimatur of Washington’s Attorney General, voters are entitled to rely on them. 4 Without citing any relevant authority, Intervenor Didier asserts that the five-day limitations period in RCW 29A.72.080 precludes plaintiffs’ constitutional challenges based on the I-976 ballot title. Didier Mot. Summ. J. at 7. He is wrong. Washington courts “have always permitted claims based on article II, section 19 to be raised postenactment.” End Prison Indus. Complex v. King Caty., 192 Wn.2d 560, 574-75, 431 P.3d 998 (2018) (distinguishing between statutory challenges, which may be subject to a statutory limitations periods, and constitutional challenges, which are not). A challenge to a ballot title based on “material representations” that are “misleading and false” is a constitutional challenge properly raised post-enactment. WASAVP, 174 at 660–61. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 7 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 46.17 RCW will continue to be collected in excess of the $30 cap); see also State’s Decl. of Jamie 2 Grantham, Dkt. 45, ¶ 11, Ex. C. at 2 (minimum registration payment due for any vehicle license 3 4 transaction is $43.25). Because the State cannot avoid this plain violation of the $30 cap based on the language of I-976, it instead insists that “it is important to understand that Washington law as 5 6 it existed before I-976 authorized a number of distinct motor vehicle taxes and fees.” State’s Mot. 7 Summ. J. at 2. This is where the State’s analysis goes wrong. Because the ballot title purports to 8 inform voters about the effects of I-976, the Court must interpret the text of I-976 to determine if 9 it comports with the representations in the ballot title. See Wash. Fed’n of State Employees v. 10 11 12 State, 127 Wn.2d 544, 556, 901 P.2d 1028, 1034–35 (1995). It does not. Regardless of other statutory definitions, I-976 adopts its own controlling definition of “state and local motor vehicle license fees.” It defines the comprehensive scope of the initiative’s 13 14 legally operative language in section 2(1) that “state and local motor vehicle license fees may not 15 exceed $30 per year for motor vehicles.” Decl. of Matthew Segal, Dkt. 24, Ex. A, § 2(1). Even 16 without its required liberal construction, section 2(2) of I-976 broadly defines “state and local 17 motor vehicle license fees” to include “the general license tab fees paid annually for licensing 18 motor vehicles.” Id., §§ 14, 2(2). The plain language of this definition refers to the “annual fee 19 [that] must be paid and collected annually and is due at the time of initial and renewal vehicle 20 21 22 registration.” Id. In short, it refers to any annual payment that a vehicle owner must make to register a motor vehicle. 23 The State’s attempt to rely on other statutory definitions can neither limit the I-976 24 definition, nor make the ballot title’s claim of $30 car tabs true. Throughout its brief, the State 25 misrepresents the I-976 definition of “state and local motor vehicle license fees” by leaving off the 26 crucial “state and local” language. See State’s Mot. Summ. J. at 15 (claiming that “section 2 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 8 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 addresses ‘motor vehicle license fees’” and “defines ‘motor vehicle license fees”’). With “state 2 and local” properly included in the I-976 definition, the State’s claim that I-976 applies only to a 3 portion of the “vehicle license fees” in chapter 46.17 RCW and excludes local charges quickly 4 crumbles. The I-976 definition plainly includes all motor vehicle license fees, including “state 5 6 7 and local” ones. The State cannot pick and choose the chapter 46.17 RCW fees that are subject to I-976 because the initiative’s broad definition includes all of them. 8 In construing the meaning of an initiative, “the language of the enactment is to be read as 9 the average informed lay voter would read it.” WASAVP, 174 Wn.2d at 662. Here, the State 10 effectively admits that its claimed distinction between various license tab renewal fees fails this 11 12 test: “Taxpayers may not have distinguished between these fees because they were paid at the same time and some had similar names….” State’s Mot. Summ. J. at 2. Indeed, when considering I- 13 14 976, all the official materials before voters supported a reasonable belief in the ballot title’s 15 representation of $30 car tabs. See Pltfs.’ Mot. Summ. J. at 23. The “pro” statement in the voter’s 16 pamphlet advocated for “$30 car tabs now!” Declaration of David Hackett, Dkt. 151, Ex. 3 at 1. 17 Consistent with the ballot title, it informs voters that “I-976 limits license tabs to a flat, fair, and 18 reasonable $30 per year” for your vehicle. Id. The “average informed lay voter” reading the ballot 19 title, the initiative text and the voter’s pamphlet would be easily and readily misled into believing 20 21 22 that a vote for I-976 meant a flat cap of $30 for annual vehicle registrations. This is where the State’s quandary between violating article II, section 19 or article II, 23 section 37 kicks in. Under the State’s own interpretation of the initiative, it is absolutely certain 24 that no one will pay just $30 and many in the RTA service area will continue to pay many hundreds 25 more than $30 every time a vehicle is registered. If the State is right in its interpretation of I-976, 26 then license tabs will exceed $30 and the ballot title is demonstrably false. But if the State’s 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 9 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 interpretation of I-976 is wrong and the initiative imposes a flat $30 fee through an implied repeal 2 of the various chapter 46.17 RCW license tab renewal fees, then the initiative violates article II, 3 section 37. Under either circumstance, the initiative is unconstitutional. 4 The Deceitful Claim of an Exemption for Voter-Approved Charges. Despite repeated 5 6 and direct challenges from Plaintiffs, the State fails to identity any part of I-976 (or any other law 7 that would survive the initiative’s effective date) that authorizes a vote to exceed the $30 cap. 8 Contrary to the ballot title, I-976 removes any such statutory mechanism and leaves voters without 9 any means to exceed the $30 cap. 10 11 The State’s claim that some future change in the law might enact such a mechanism is irrelevant. The ballot title tells voters what I-976 “would do” upon its effective date, not how some 12 future initiative or legislative enactment might amend I-976 to fulfill the false representations of 13 14 the I-976 ballot title. As to what I-976 would do, the ballot title offers only false and illusory 15 promises of votes to exceed the $30 cap, while repealing the very statutes that formerly allowed 16 such votes. This deception violates article II, section 12. 17 The false and misleading statements in the I-976 ballot title violate a core constitutional 18 requirement. See State v. Mitchell, 55 Wash. 513, 516, 104 P. 791, 793 (1909) (“Perhaps the most 19 salutary provision in our state Constitution is article 2, § 19,” which “is a declaration that truth 20 21 22 must go before, shedding its light upon every legislative act.”). Because the ballot title deceives voters into believing either that their votes would enact a flat $30 license tab fees, or that the 23 initiative would exempt voter approved charges from the $30 cap, Plaintiffs have presented the 24 kind of “grave” objections to the title that represent a “palpable” violation of article II, section 19. 25 WASAVP, 174 Wn.2d at 660–61. On this ground alone, I-976 must be declared unconstitutional.5 26 27 5 Plaintiffs also rely on other “subject in title” arguments. Plaintiffs’ Motion at 19-26. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 10 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 C. I-976 Violates Article II, Section 37. 2 As set forth in Section V.D of Plaintiffs’ Motion, I-976 amends existing statutes without 3 setting them forth in full. See Pltfs.’ Mot Summ. J. at 35-40. The State’s strained reading of I-976 4 is not supported by its language and fails to overcome the initiative’s violation of article II, section 5 6 37. 7 1. I-976’s Repeal of RCW 82.80.140 Amends TBDs’ Authorizing Legislation. 8 The State concedes that I-976’s repeal of RCW 82.84.140 has at least “an incidental 9 impact” on the TBD authorizing statutes, RCW 36.73.040 and .065, but grossly mischaracterizes 10 those statutes when it asserts that they do not “create[] independent authority for TBDs to impose 11 annual vehicle fees.” State’s Mot. Summ. J. at 18. To the contrary, RCW 36.73.040 and .065 are 12 part of the TBD authorizing statutes, and their plain language independently and affirmatively 13 14 15 authorizes TBDs to impose and collect the VLFs at issue. See RCW 36.73.040(3)(b) (“To carry out the purposes of this chapter, and subject to the provisions of RCW 36.73.065, a [TBD] is 16 authorized to impose the following taxes, fees, charges, and tolls: . . . [a] vehicle fee in 17 accordance with RCW 82.80.140.” (emphasis added)); RCW 36.73.065(4), (6) (authorizing certain 18 VLFs imposed by TBD governing bodies and voter-approved VLFs). 19 20 The State concedes, however, that following I-976, chapter 36.73 RCW “no longer authorizes TBDs to impose such a vehicle fee.” State’s Mot. Summ. J. at 18. To comply with 21 22 article II, section 37, I-976 was required to set forth the amendments to these statutes that eliminate 23 the TBD vehicle fee authority, which are extensive. Declaration of Jessica Skelton in Support of 24 Plaintiffs’ Combined Opposition to Summary Judgment Motions (“Skelton. Decl.”), Ex. A. 25 Ironically, other portions of I-976 properly disclose the effect on other statutes. Compare Segal 26 Decl., Ex. A at § 11 (repealing RCW 81.104.160’s grant of authority to RTAs to charge the MVET) 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 11 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 with id., §§ 10(4)(a)(ii), 10(10)(b) (amending RCW 81.104.140 to clarify that RTAs are no longer 2 authorized to charge the MVET). By failing to similarly disclose section 6’s amendments to RCW 3 36.73.040 and .065, I-976 constitutes a textbook violation of article II, section 37. 4 The State’s arguments to the contrary are unavailing. The State emphasizes that RCW 5 6 36.73.040 and .065 cross-reference RCW 82.80.140,6 see State’s Mot. Summ. J. at 18, but 7 identifies no authority that cross-references are sufficient to avoid an article II, section 37 violation. 8 To the contrary, any reader of RCW 36.73.040 and .065 would have no way of knowing the law 9 had changed in any way. Thus, I-976 renders erroneous any attempt at a “straightforward 10 determination of the scope of rights or duties” under RCW 36.73.040 and .065. El Centro De La 11 Raza v. State, 192 Wn.2d 103, 129, 428 P.3d 1143 (2018). Moreover, the State conveniently 12 ignores that RCW 36.73.065(6), which authorizes voter-approved VLFs, does not reference RCW 13 14 15 82.80.140, leading to confusion over whether such voter-approved VLFs are repealed following I976. 16 Additionally, although the State has never argued that I-976 in its entirety is a complete 17 act,7 it now incorrectly argues that the initiative may be parsed and that section 6 alone is complete 18 19 for article II, section 37 purposes. This novel approach to article II, section 37 should be rejected. See, e.g., El Centro, 192 Wn.2d at 129 (analyzing whether “‘the new enactment [is] such a 20 21 22 complete act that the scope of the rights or duties created or affected by the legislative action can be determined without referring to any other statute or enactment.’” (quoting State v. Manussier, 23 129 Wn.2d 652, 663, 921 P.2d 473 (1996); emphasis added). Even if this Court could consider 24 section 6 alone (which it cannot), section 6 is not complete. An act “amendatory of prior acts” is 25 26 27 RCW 82.80.140 likewise repeatedly references VLFs “under RCW 36.73.065,” confirming that TBD VLFs are authorized under chapter 36.73 RCW. 7 Nor could it, for the reasons stated in Plaintiffs’ Motion at 36. 6 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 12 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 not complete. Wash. Citizens Action of Wash. v. State, 162 Wn.2d 142, 159, 171 P.3d 486 (2007); 2 see also Citizens for Responsible Wildlife Mgmt., 149 Wn.2d at 641. 3 ATU does not require a different conclusion. The portion of ATU cited by the State 4 addressed section 3 of I-695, which repealed 44 statutes, including those authorizing the MVET 5 6 (chapter 82.44 RCW). See Skelton Decl., Ex. B (I-695). The plaintiffs in ATU claimed that section 7 3 violated article II, section 37 because the repeal would have the effect of “eliminat[ing] funding 8 for many important programs,” resulting in the potential reduction or loss of various public 9 transportation services. 142 Wn.2d at 254. The Court rejected this argument, holding it was 10 “clear…that with repeal of the MVET, funding would be affected”, and I-695 could not be said to 11 be “incomplete as to the subject of eliminating the MVET.” Id. at 255. Here, Plaintiffs do not 12 allege an article II, section 37 violation based on failure to identify the funding impacts of I-976. 13 14 Rather, I-976 actually amends substantive provisions of existing statutes without setting forth 15 those amendments. ATU elsewhere confirms that a law that effectively amends existing statutes, 16 with the result that “one would not know the law by referring to the existing statute,” violates 17 article II, section 37. 142 Wn.2d at 253-54. 18 19 I-976’s failure to disclose its effect on chapter 36.73 RCW is particularly troubling with respect to the provisions authorizing voter-approved VLFs. See RCW 36.73.065(1)-(2), (4), (6). 20 21 22 As previously noted, I-976 purports (and was advertised to the public) to retain “voter-approved charges.” See Segal Decl., Exs. A (I-976 §§ 1, 2), B (ballot title); Hackett Decl., Ex. 2 (explanatory 23 statement). By failing to set out the amendments to the voter-approved VLF provisions in RCW 24 36.73.065, I-976 created confusion as to whether it did in fact retain these voter-approved charges. 25 Article II, section 37 is intended to prevent exactly this type of manipulative drafting. See Wash. 26 Citizens Action of Wash., 162 Wn.2d at 161 (“[T]he purpose of article II, section 37 is to avoid 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 13 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 misleading those voting on a proposed law by ensuring disclosure of the general effect of the new 2 legislation and by showing its specific impact on existing laws…”). 3 4 2. The State’s Inconsistent Positions on Chapter 46.17 RCW’s Additional Fees Illustrate I-976’s Misleading and Confusing Nature. 5 Additionally, I-976 fails to set forth its amendments to chapter 46.17 RCW. As discussed 6 in Section B, supra, Section 2 of I-976 imposes a $30 cap on “[s]tate and local motor vehicle 7 license fees,” which are defined broadly as the “general license tab fees paid annually for licensing 8 motor vehicles” except for “charges approved by voters after the effective date of this section.” 9 10 11 Segal Decl., Ex. A at § 2(2) (emphasis added). Chapter 46.17 RCW sets forth numerous additional vehicle license fees, filing and service fees, and license plate fees that are charged and collected as 12 part of the total annual license fee tab. To effectuate the $30 cap, I-976 must eliminate these fees. 13 But with the exception of the motor vehicle weight fee (RCW 46.17.365) and the filing fee (RCW 14 46.17.005), none of those additional fees are referenced in I-976 and, thus, the initiative again 15 violates article II, section 37. 16 In its Motion, the State doubles down on its position that all annual license fees in chapter 17 18 46.17 RCW that are not mentioned in I-976 will continue to apply in excess of the $30 cap and 19 that Plaintiffs “simply misread the law” in arguing otherwise. State’s Mot. Summ. J. at 17. This 20 is an indefensibly strained reading of chapter 46.17 RCW’s vehicle fee provisions. See Section B, 21 supra. As the State DOL itself has recognized, tab fees include not only the filing and service fees 22 in chapter 46.17 RCW, but also TBD fees, Sound Transit MVETs, and other fees and charges 23 24 collected at the time of vehicle registration. Skelton Decl., Exs. C (DOL’s “Renewal fees for basic passenger vehicles” fact sheet); D (sample vehicle tab fee estimate from DOL’s “Vehicle Tab 25 26 Estimator” service). 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 14 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 Additionally, the State simply glosses over the fact that its attempted reconciliation of I- 2 976 with the existing chapter 46.17 RCW scheme renders the initiative and the ballot title all the 3 more misleading and inaccurate. The State’s attempt to avoid violation of article II, section 37 4 assures license tab fees will exceed section 2(1)’s mandatory $30 cap. The State claims the 5 6 initiative somehow made this result clear to voters, but it said the opposite mere months ago in 7 opposing Eyman’s ballot title challenge regarding I-9758 and I-976. There, the State told the court 8 that because RCW 46.17.350 already set motor vehicle license fees at $30 for most vehicles, 9 section 2 of I-975 (which was identical to section 2 of I-976 in both its $30 cap and its definition 10 of “state and local motor vehicle fees”)9 had “uncertain” impact. Skelton Decl., Ex. E at 7. The 11 State explained, “[t]he uncertainty is whether the measure’s definition would include additional 12 fees imposed that are not entitled motor-vehicle-license fees but are nevertheless imposed 13 14 annually. E.g., RCW 46.17.005 (filing fee).” Id. at 7 n.4 (emphasis added).10 The initiative 15 sponsor has similarly acknowledged that I-976 creates confusion as to whether additional fees in 16 excess of $30 will be charged.11 Article II, section 37 requires that an initiative disclose its 17 amendment of existing law so that such confusion can be avoided. I-976 violates article II, section 18 37. 19 20 21 22 23 24 25 26 27 I-975 is one of the 13 initiatives (including I-976) that Eyman filed in 2018 with the intent to “bring back [] $30 car tabs.” See Dkt. 157 at 14-15; Dkt. 151, Ex. 8; Dkt. 24, Ex. A. 9 Compare Dkt. 24, Ex. A (I-976, § 2) with Dkt. 151, Ex. 8 (I-975, § 2). 10 The State’s position taken in the ballot title challenge aligns with statements it made to the media shortly after I976 passed. The State was asked about additional fees imposed under chapter 46.17 RCW, including the $4.50 county filing fee, $0.75 license service fee, and $8.00 service fee. See Skelton. Decl., Ex. F at 3. It answered that while the $30 basic renewal fee would stay in effect, it was “too early…to say” and the State had no “specifics” as to the other fees. Id. 11 In disputing that the initiative was deceptive in this regard, Eyman stated, “The (basic renewal fee) is $30. But when it comes to these ancillary fees, it just wasn’t worth breaking your pick on and have the measure be two or three times longer.” Skelton Decl., Ex. F at 4. 8 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 15 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 3 D. I-976 Runs Afoul of Article VII, Section 5 Because It Diverts Tax Revenue Levied Exclusively for Transportation Purposes. The State next argues that article VII, section 5 does not apply here because I-976 does not 4 levy a tax. State’s Mot. Summ. J. at 19. This is simply incorrect. Application of article VII, section 5 5 is not limited to measures that levy taxes. As Plaintiffs explained in their Motion, the provision 6 renders unconstitutional measures that “divert taxes assessed for [particular] purposes into some 7 wholly unrelated” purpose. Sheehan v. Cent. Puget Sound Reg’l Transit Auth., 155 Wn.2d 790, 8 804, 123 P.3d 88 (2005). That is exactly what I-976 does by taking taxes allocated for Sound 9 10 11 Transit capital improvements and requiring their reallocation to accelerated debt retirement. The primary case relied on by Plaintiffs demonstrates that such a wholly unrelated purpose 12 includes the payment of debt. In Sheldon v. Purdy, 17 Wash. 135, 49 P. 228 (1897), bondholders 13 sued to compel the county treasurer to pay sums due on bonds issued by a school district. Id. at 14 135-37. The bondholders argued that a specific section of the county code required the county 15 treasurer to use any available school district funds to pay interest on those bonds. Id. at 139-40. 16 The Court held the section relied on by the bondholders violated article VII, section 5 because it 17 18 purported to require the county treasurer to “divert taxes raised” specifically for “the payment of 19 current expenses” and the “support of public schools” to “the payment of [the school district’s] 20 special debt.” Id. at 140-41. The Court invalidated that section of the code even though the section 21 did not levy a tax. Id. at 141; see also State ex rel. Latimer v. Henry, 28 Wash. 38, 45-46, 68 P. 22 368 (1902) (under article VII, section 5, regardless of whether legislation levied a tax, general 23 county funds could not be used to pay off an assessment of school properties for a drainage 24 system). 25 26 27 I-976 is void under article VII, section 5 because, like the acts at issue in Sheldon and Henry, section 12 of I-976 purports to divert MVET revenue used exclusively for Sound Transit’s PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 16 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 high capacity transportation system to the early retirement of bond debt. Pltfs.’ Mot. Summ. J. at 2 53-55. I-976 further offends this constitutional provision because, as explained in Plaintiffs’ 3 4 Motion, section 6 of the initiative materially modifies the use of TBD funding across the state. Pltfs.’ Mot. Summ. J. at 54-55. Accordingly, Plaintiffs—not the State—are entitled to summary 5 6 7 judgment on their article VII, section 5 claim. E. 8 Article 11, Section 12 Precludes the Legislature from Withdrawing Vested Local Taxing Authority That Is Being Actively Used for a Local Purpose. The State posits a strawman argument on local taxing authority and then proceeds to refute 9 10 11 it. However, Plaintiffs have not, and are not, making the argument set out by the State. Instead, Plaintiffs’ argument, based on the largely overlooked vesting clause of article 11, section 12, is 12 contained in their Motion at 40-48. Plaintiffs will reply in support of this argument when and if 13 the State addresses it.12 14 F. 15 16 I-976 Violates Article I, Section 19. In seeking dismissal of Plaintiffs’ claims under article I, section 19 (“free elections clause”), the State fails to appreciate the scope and reach of that section in safeguarding the 17 18 19 20 integrity of elections and overlooks the role of I-976 in disenfranchising local voters. I-976 violates the free elections clause in two distinct ways: by retroactively interfering with a 2014 local election and by debasing or diluting the votes of local residents on a matter of local concern. 21 The State recognizes that the free elections clause guarantees “free and equal” elections. 22 State’s Mot. Summ. J. at 21 (citing Const. art. I, § 19). However, the State suggests, without 23 reference to authority, that this provision is limited to the “manner in which elections are 24 conducted.” State’s Mot. Summ. J. at 21. While it certainly protects the election process, our 25 26 27 12 Plaintiffs rely on this argument and the other arguments in their Motion in response to the State’s Motion. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 17 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 Constitution prohibits the government from interfering “at any time” with “the free exercise of 2 the right of suffrage.” Const. art. I, § 19 (emphasis added); see State v. Roggenkamp, 153 Wn.2d 3 614, 624, 106 P.3d 196 (2005) (“Statutes must be interpreted and construed so that all language 4 used is given effect, with no portion rendered meaningless or superfluous.”) (quotation omitted). 5 6 These protections would be hollow if this provision ensured that an election was conducted 7 properly but failed to enforce its results. I-976 did exactly that, by permitting statewide voters to 8 “interfere” retroactively with “the free exercise of the right of suffrage” by manipulating the result 9 of the 2014 election. Const. art. I, § 19. While the applicability of the free elections clause to 10 these precise circumstances may be an issue of first impression, allowing outside voters to nullify 11 12 the results of a valid, prior election “strike[s] at the heart of representative government.” Gold Bar Citizens for Good Gov’t v. Whalen, 99 Wn.2d 724, 730, 665 P.2d 393 (1983) (quoting Reynolds v. 13 14 Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964)). 15 Contrary to the State’s insistence that a local voter-approved measure can be cast aside as 16 soon as the polls close, State’s Mot. Summ. J. at 21, the 2014 vote in favor of Seattle’s VLF must 17 be honored through December 31, 2020. Declaration of Rachel VerBoort, Dkt. 19, ¶ 3, Ex. A. By 18 curtailing Seattle’s authority to collect the VLF, I-976 unduly interfered with the results of the 19 2014 vote, in which Seattle voters not only opted to collect VLFs but elected to do so for a specific 20 21 22 period of time, as set forth in the ballot measure. See id. Furthermore, even if the Court accepted the State’s contention that statewide voters could 23 set aside the results of local elections at any time, summary dismissal of Plaintiffs’ article I, section 24 19 claims would be unwarranted. Separate from interference with the 2014 election, I-976 also 25 violates the free elections clause in and of itself, by denying the Seattle voters who cast a ballot in 26 2019 a meaningful opportunity to vote on an issue of local concern. 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 18 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 As detailed in Plaintiffs’ Motion at 50-52, the free elections clause “require[s] that 2 otherwise qualified voters who are significantly affected by the results of an election be given an 3 opportunity to vote in that election.” City of Seattle v. State, 103 Wn.2d 663, 673, 694 P.2d 641 4 (1985) (internal quotations omitted). A denial of the right to vote can occur “directly” or 5 6 “indirectly.” Id. Most notably, “the right of suffrage can be denied by a debasement or dilution 7 of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the 8 franchise.’” Gold Bar Citizens for Good Gov’t, 99 Wn.2d at 730 (quoting Reynolds, 377 U.S. at 9 555). 10 11 Seattle voters are “directly and significantly affected by” the authority to collect revenue for Seattle’s TBD and are therefore entitled to a meaningful vote on the matter. See Foster v. 12 Sunnyside Valley Irrigation Dist., 102 Wn.2d 395, 410, 687 P.2d 841 (1984). Contrary to 13 14 constitutional requirements, I-976 stripped these voters of a meaningful opportunity to vote on 15 these purely local issues by allowing unaffected outside voters to dilute their votes. Cf. Gold Bar, 16 99 Wn.2d at 730-31 (“Each [vote of a nonresident of Gold Bar] denies the voters of Gold Bar the 17 opportunity to select who will govern them by allowing someone who will not be affected by the 18 policies of the officials to influence that decision.”). Indeed, voter dilution operated to negate the 19 votes of Seattle voters altogether, as evident from both the 2014 election, in which Seattle voters 20 21 22 handily approved TBD fees, Dkt. 19 (VerBoort Decl., ¶ 3 & Ex. B), and the overwhelming support for I-976 among Seattle voters.13 23 This effective disenfranchisement of local voters was particularly offensive here because 24 I-976 incentivized outside voters to reject Seattle’s VLF. Because I-976 combined multiple, 25 26 27 13 See https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976.html as of 1/5/20 (searching by precincts SEA); see also https://www.seattletimes.com/seattle-news/politics/majority-of-voters-payingsound-transits-car-tab-taxes-opposed-i-976/ (last visited Jan. 9, 2020). PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 19 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 unrelated subjects, outside voters with no stake in Seattle’s VLF but an interest in other subjects, 2 such as the elimination of a vehicle sales tax, were forced to weigh in on Seattle’s ability to tax 3 itself. The deceptive ballot title added insult to injury, by suggesting that an affirmative vote would 4 not impact voter-approved fees. See Sections A and B, supra. 5 Finally, the Supreme Court’s decision in Pierce County I has no bearing on Plaintiffs’ 6 7 article I, section 19 claims, because the free elections clause was not at issue in that case, and the 8 decision makes no mention of that provision. See Pierce Cty. I, 150 Wn.2d 422; State’s Mot. 9 Summ. J. at 21. 10 11 12 G. I-976 Violates Washington’s Separation of Powers Doctrine. The State does not dispute that the people exercising the initiative power cannot intrude on a project for which only administrative decisions remain. Nor does the State argue that the Sound 13 14 15 Transit project is not such a project. The State’s only argument is that the prohibition against an initiative’s intrusion on administrative acts applies only in the context of a local, not a state, 16 initiative. The State is wrong. Moreover, the State misapplies prior cases involving contingent 17 legislation in arguing that section 16 of I-976 is valid. I-976 violates separation of powers 18 requirements both by addressing administrative matters in section 12 and by improperly delegating 19 legislative powers to an unrelated legislative body in section 16. 20 1. 21 I-976’s Section 12 Intrudes on Administrative Matters in Violation of Article II, Section 1. 22 I-976’s section 12 requires any RTA that collects MVET revenues under RCW 81.104.160 23 to “fully retire, defease, or refinance any outstanding bonds” when such revenues were pledged to 24 outstanding bonds and the terms of the bonds allow them to be retired, defeased, or refinanced 25 early. Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447 (1973) sets out the applicable test to 26 27 determine whether an action is legislative or administrative: if an action “is one to make a new law PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 20 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 or policy,” it is legislative, but if it is “merely to carry out and execute law or policy already in 2 existence,” it is administrative. Section 12 of I-976 falls within the latter category. 3 Ruano is factually analogous and legally controlling. In Ruano, the legislative decision to 4 build the Kingdome had been made including deciding to finance it through bonds and to repay 5 6 those bonds from specified revenue sources. See 81 Wn.2d at 825. Subsequently, an initiative 7 was adopted to halt the project and require repayment of issued bonds. The Court struck down the 8 initiative as intruding on an ongoing project because “only administrative decisions remained in 9 connection with the stadium project, decisions not subject to the initiative process.” Id. at 825. 10 11 12 Here, the State authorized RTA voters to approve high capacity transportation projects, raise taxes including an MVET, and to bond against pledged revenue including the MVET. See RCW 81.104.160; RCW 81.104.210(3). Any RTA “is authorized” to use its revenues “to retire 13 14 bonds issued solely for the purpose of providing high capacity transportation services.” RCW 15 81.104.180. Prior to I-976, the State made the legislative decision to authorize RTAs. And the 16 voters in the Sound Transit district made the legislative decision to proceed with building ST1, 17 ST2 and ST3, financing that construction with revenue bonds backed by the RTA MVET. At this 18 19 point, only administrative decisions remain with regard to those projects. As in Ruano, an initiative cannot intrude on these ongoing projects and require repayment of bonds.14 20 2. 21 22 23 24 Constitutional Restrictions on Legislative Interference with Administrative Matters Apply to Both State and Local Initiatives. The State argues that since the scope of the state initiative power (article II, section 1 of the Washington Constitution) is greater than the local power, cases such as Ruano do not apply. But the Supreme Court has stated otherwise. As held in City of Port Angeles v. Our Water- Our 25 26 14 27 As discussed above, by forcing Sound Transit to adjust its project plans, the initiative also violates article VII, section 5. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 21 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 Choice, “neither article II, section 1 nor RCW 35A.11.080 encompasses the power to administer 2 the law, and administrative matters, particularly local administrative matters, are not subject to 3 4 initiative or referendum. 170 Wn.2d 1, 8, 239 P.3d 589 (2010) (emphasis added). Therefore, contrary to the State’s arguments, cases that discuss an overreach of local initiative power into the 5 6 7 8 realm of administrative matters are relevant rather than distinguishable, because they address a local initiative. 3. Contingent Legislation Does Not Allow for Improper Delegation of Legislative Functions. 9 10 Section 16(3) establishes effective dates for various sections of the initiative. It states that 11 I-976 sections 10 and 11 take effect on the date that the RTA complies with section 12. But section 12 13 takes effect April 1, 2020 if sections 10 and 11 have not taken effect by March 31, 2020. The 13 RTA is required to provide written notice to various authorities regarding its belief on the effective 14 dates of sections 10, 11, and 13 of the initiative. Segal Decl., Ex. A, § 16(3). Because section 16 15 delegates the legislative authority to make sections 10, 11, and 13 effective or ineffective at the 16 17 discretion of the RTA, it violates separation of powers principles. 18 “A statute must be complete in itself when it leaves the hands of the Legislature.” 19 Diversified Inv. P’ship v. Dep’t of Soc. & Health Servs., 113 Wn.2d 19, 24, 775 P.2d 947, 950 20 (1989). A complete act exists when the Legislature determines the contingent event that will 21 22 trigger the effective date of legislation. The State cites multiple cases that contained legislation contingent on a future specified event (including events in the control of private parties) but never 23 24 25 26 acknowledges that, in all those cases, the contingent event is a single triggering factual event which allows the entire statute to become effective. As described by the Supreme Court in 2016: [t]he bills in Storey and Brower proposed laws whose effective date were to be postponed until the happening of a contingency closely related to the proposed law 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 22 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks […] the contingencies in Storey and Brower were designed to avoid the enactment of unnecessary legislation. 1 2 3 Lee, 185 Wn.2d at 625-626. Here, the contingencies are not in place in order to avoid unnecessary 4 legislation but rather to try and avoid an impairment of contracts violation. I-976 would therefore 5 go into effect in one form and, later, based on Sound Transit action, would morph into a new form 6 if the contingent event occurred, which is distinguishable from the facts in the cases on which the 7 State relies. While avoiding impairment of contracts is a worthy goal (albeit one not achieved in 8 I-976 given the Burien contracts), avoiding one constitutional violation by committing another 9 10 11 does not save this initiative. See State v. Parmenter, 50 Wash. 164, 175, 96 P. 1047 (1908) (“One requirement of the Constitution is as mandatory in its nature as another.”). 12 Moreover, the Supreme Court has distinguished between “conditioning the operative effect 13 of a statute upon the happening of a future specified event” versus “transfer[ring] the power to 14 render judgement on an issue to a federal legislative or administrative body.” Diversified Inv. 15 16 17 18 P’ship, 113 Wash.2d at 28. An act is not complete when it leaves the effective date to the unfettered judgment of an unrelated legislative body. Moreover, the Legislature cannot “delegate the power to repeal a statute” because in such a circumstance it “necessarily transfers its power to 19 render judgment as to the continued expediency of the statute.” Id. at 30. The convoluted effective 20 dates set forth in I-976 section 16 represent an unconstitutional delegation of legislative authority 21 because the RTA is granted the power to repeal or amend statutes based on its own judgments, not 22 23 24 based on the happening of a future event specified in the initiative. H. I-976’s Repeal of TBD VLFs Unconstitutionally Impairs Burien’s Bonds. As argued in Sections II.A and V.J of Plaintiffs’ Motion, I-976 impairs the City of Burien’s 25 26 27 (“Burien’s”) 2010 bonds (“Bonds”) in violation of article II, section 23. See Pltfs.’ Mot. Summ. J. at 5-7, 59-63. Rather than disputing the basis of Plaintiffs’ impairment claim, the State’s Motion PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 23 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 simply states it will address the issue in its opposition to Plaintiffs’ Motion. But three points raised 2 by the State require a brief response here. First, the State implies that it lacked adequate 3 information to address Plaintiffs’ impairment claim in its Motion, but the case timeline confirms 4 otherwise. On the agreed December 9 deadline to join new parties, Plaintiffs filed an unopposed 5 6 motion to amend their complaint to (among other things) add Burien as a party. See Dkt. 97. 7 Plaintiffs attached a proposed first amended complaint (“FAC”) that alleged that VLF revenues 8 were pledged to repay Burien’s Bonds. Id. (FAC ¶ 4). On Thursday, January 2, 2020, the State’s 9 counsel requested copies of the bond documents or contracts relevant to Plaintiffs’ impairment 10 claim, which Plaintiffs provided on January 6. Skelton Decl., ¶ 8 & Ex. G. The State was thus 11 12 aware of the specific basis for Plaintiffs’ impairment claim no later than December 9, and possessed the relevant documents no later than January 6. Thus, the State’s claim of entitlement 13 14 to separately cross-move on this issue in its forthcoming opposition ignores that the State had 15 sufficient information and is contrary to the parties’ agreed scheduling order and the Civil Rules.15 16 Second, the State attempts to limit Plaintiffs’ article I, section 23 claim solely to Burien. 17 But I-976 results in impairment wherever TBD VLFs are pledged to secure debt obligations. See 18 19 Declaration of Peter King, Dkt. 152, ¶¶ 6, 11-12 & Ex. D (Longview and Richland have pledged VLFs to debt payments). Although relief is sought specifically on behalf of Burien here, I-976 is 20 21 22 unconstitutional as to any municipality that pledged VLFs to debt payments prior to I-976’s effective date. See Pierce Cty. II, 159 Wn.2d at 28-39. 23 24 25 26 27 15 Under CR 56(c), a party is entitled to at least 17 calendar days (unless otherwise agreed or ordered by the court) to collect opposing affidavits/evidence and draft an opposition to a motion for summary judgment. A cross-motion by the State in its opposition brief would not give adequate time for Plaintiffs to respond prior to the agreed February 7, 2020, date for the summary judgment hearing. The case cited by the State, Impecoven v. Dep’t of Revenue, 120 Wn.2d 357, 365, 841 P.2d 752 (1992) did not involve a cross-motion contained in an opposition. PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 24 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 VI. CONCLUSION 2 For the foregoing reasons, the Plaintiffs, not the State, are entitled to summary judgment. 3 This memorandum contains 8,348 words. 4 5 6 7 8 9 10 11 12 DATED this 24th day of January, 2020. DANIEL T. SATTERBERG King County Prosecuting Attorney PETER S. HOLMES Seattle City Attorney By: s/ David J. Hackett David J. Hackett, WSBA #21236 David J. Eldred, WSBA #26125 Jenifer Merkel, WSBA #34472 Senior Deputy Prosecuting Attorneys Erin B. Jackson, #49627 Deputy Prosecuting Attorney By: s/ Carolyn U. Boies Carolyn U. Boies, WSBA#40395 Erica R. Franklin, WSBA#43477 Assistant City Attorneys John B. Schochet, WSBA#35869 Deputy City Attorney Attorneys for King County Attorneys for City of Seattle 13 PACIFICA LAW GROUP LLP 14 15 16 17 18 19 20 21 22 By /s Matthew J. Segal Paul J. Lawrence, WSBA #13557 Matthew J. Segal, WSBA #29797 Jessica A. Skelton, WSBA #36748 Shae Blood, WSBA #51889 Attorneys 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 23 24 25 26 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 25 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 3 4 5 6 CERTIFICATE OF SERVICE I am and at all times hereinafter mentioned was a citizen of the United States, a resident of the State of Washington, over the age of 21 years and not a party to this action. On the 24th day of January, 2020, I caused to be served, via the King County E-Service filing system and via electronic mail per agreement of the parties, a true copy of the foregoing document upon the parties listed below: 7 For Plaintiff King County: For Plaintiff Pacifica Law Group: 8 David J. Hackett, Attorney David J. Eldred, Attorney Jenifer Merkel, Attorney Erin B. Jackson, Attorney Rafael Munoz-Cintron, Legal Assistant David.hackett@kingcounty.gov David.eldred@kingcounty.gov Jenifer.merkel@kingcounty.gov Erin.jackson@kingcounty.gov Munioz-cintron@kingcounty.gov Paul J. Lawrence, Attorney Matthew J. Segal, Attorney Jessica Skelton, Attorney Sydney Henderson, Legal Assistant Shae Blood, Attorney paul.lawrence@pacificalawgroup.com matthew.segal@pacificalawgroup.com Jessica.skelton@pacificalawgroup.com Sydney.henderson@pacificalawgroup.com shae.blood@pacificialawgroup.com For Defendant State of Washington: Alan D. Copsey, Deputy Solicitor General Alicia Young, Deputy Solicitor General Lauryn Fraas, Assistant Attorney General Karl Smith, Deputy Solicitor General Kristen Jensen, Executive Assistant Rebecca Davila-Simmons, Paralegal Morgan Mills, Legal Assistant Alan.copsey@atg.wa.gov Alicia.young@atg.wa.gov Lauryn.fraas@atg.wa.gov Karl.smith@atg.wa.gov Kristen.jensen@atg.wa.gov Rebecca.davila-simmons@atg.wa.gov Morgan.mills@atg.wa.gov For Intervenor-Plaintiffs, Washington ADAPT, Transit Riders Union and Climate Solutions: Knoll Lowney, Attorney knoll@smithandlowney.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For Intervenor-Defendant Pierce County: Daniel R. Hamilton, Attorney Frank A. Cornelius, Attorney dan.hamilton@piercecountywa.gov frank.cornelius@piercecountywa.gov For Intervenor-Defendant Clint Didier: Stephen W. Pigeon, Attorney spigeon007@gmail.com For Intervenor-Defendants Timothy Eyman, Michael Fagan and Jack Fagan: Mark D. Kimball, Attorney mkimball@mdklaw.com 26 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 26 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 3 I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 24th day of January, 2020. 4 5 s/ Marisa Johnson Marisa Johnson, Legal Assistant 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S AND INTERVENORS MOTIONS FOR SUMMARY JUDGMENT - 27 20284 00002 ja24gc03ex Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks