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FILED

Hearing
2020 JAN 24 09:56
AMdate: February 7, 2020
Hearing
KING COUNTY time: 9:00 a.m.
Judge/Calendar:
SUPERIOR COURT
CLERK Hon. Marshall Ferguson
E-FILED
CASE #: 19-2-30171-6 SEA

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
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GARFIELD COUNTY
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TRANSPORTION AUTHORITY; et al,
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CASE NO. 19-2-30171-6 SEA
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Plaintiffs,
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INTERVENOR DIDIER’S
and
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RESPONSE ON SUMMARY
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JUDGMENT
WASHINGTON ADAPT,
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Intervenor-Plaintiff,
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v.
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STATE OF WASHINGTON,
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Defendant.
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and
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CLINT DIDIER; PERMANENT
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OFFENSE; TIMOTHY D. EYMAN;
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MICHAEL FAGAN; JACK FAGAN; and )
PIERCE COUNTY,
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Intervenor-Defendants
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___________________________________ )
This court has entered a preliminary injunction delaying the effective date of the

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Initiative (which was set to become law on December 5, 2019). As a result, there are three

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fundamental truths which exist currently:
INTERVENOR DIDIER’S RESPONSE ON SUMMARY JUDGMENT - 1
STEPHEN W. PIDGEON
Attorney at Law, P.S.
1523 132nd Street SE, Suite C-350
Everett, Washington 98208
(425)347-7513

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1. Initiative I-976 remains a ballot issue and is not yet an effective law.

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2. Initiative I-976, having been approved by the voters in a free and fair election is

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presumed constitutional until such a time as the last appeal is exhausted should

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any court determine that the Initiative is unconstitutional – which has not yet

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happened. Brower v. State, 137 Wash.2d 44, 52, 969 P.2d 42 (1998);

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Gerberding, 134 Wash.2d at 196, 949 P.2d 1366; State ex rel. O'Connell v.

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Meyers, 51 Wash.2d 454, 458, 319 P.2d 828 (1957).

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3. None of the plaintiffs in the King County action have actual damages and will
not have actual damages until I-976 takes effect.
None of the government agencies which are plaintiffs in this case have a justiciable

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controversy prior to the time that Initiative 976 becomes law. Their status remains the

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same as it was before I-976 was approved by the voters.

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Justiciability requires:

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(1) ... an actual, present and existing dispute, or the mature seeds of one, as

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distinguished from a possible, dormant, hypothetical, speculative, or moot

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disagreement, (2) between parties having genuine and opposing interests, (3) which

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involves interests that must be direct and substantial, rather than potential,

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theoretical, abstract or academic, and (4) a judicial determination of which will be

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final and conclusive.

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Asarco Inc. v. Department of Ecology, 43 P. 3d 471, 475 (Washington Supreme Court)(

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2002), quoting First United Methodist Church of Seattle v. Hearing Exam'r, 129 Wash.2d

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238, 245, 916 P.2d 374 (1996) (quoting First Covenant Church v. City of Seattle, 114

INTERVENOR DIDIER’S RESPONSE ON SUMMARY JUDGMENT - 2
STEPHEN W. PIDGEON
Attorney at Law, P.S.
1523 132nd Street SE, Suite C-350
Everett, Washington 98208
(425)347-7513

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Wash.2d 392, 398, 787 P.2d 1352 (1990) (quoting Diversified Indus. Dev. Corp. v. Ripley,

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82 Wash.2d 811, 815, 514 P.2d 137 (1973).

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Plaintiffs can point to no actual damages, because they haven’t yet experienced any

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actual damages. Plaintiffs’ claim may be possible, but for the time being, they are dormant,

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hypothetical, and speculative. Therefore, their claims are merely potential, theoretical,

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abstract or academic damages and are simply not justiciable.

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Plaintiffs argue impairment of contracts and rely upon Article I, Section 23 of

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Washington’s Constitution which provides: "No bill of attainder, ex post facto law, or law

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impairing the obligations of contracts shall ever be passed." This prohibition applies to

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"any form of legislative action, including ... direct action by the people". Ruano v.

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Spellman, 81 Wash.2d 820, 825, 505 P.2d 447 (1973). Article 1, section 10 of the United

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States Constitution states that "[n]o state shall ... pass any ... law impairing the obligation

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of contracts ...".

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The prohibition against any impairment of contracts "is not an absolute one and is

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not to be read with literal exactness". Washington Fed. of State Emp. v. State, 127 Wash.2d

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544, 901 P.2d 1028, 1036 (1995), citing Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S.

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398, 428, 78 L.Ed. 413, 54 S.Ct. 231 [236] 88 A.L.R. 1481 (1934). But when a state

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interferes with its own contracts, those impairments “face more stringent examination

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under the Contract Clause than would laws regulating contractual relationships between

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private parties”. Id, at 1037, citing Allied Structural Steel Co. v. Spannaus, 438 U.S. 234,

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244 n. 15, 57 L.Ed.2d 727, 98 S.Ct. 2716 [2722 n. 15] (1978). Accord Caritas Servs., Inc.

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v. Department of Social & Health Servs., 123 Wn.2d 391, 402-03, 869 P.2d 28 (1994).

INTERVENOR DIDIER’S RESPONSE ON SUMMARY JUDGMENT - 3
STEPHEN W. PIDGEON
Attorney at Law, P.S.
1523 132nd Street SE, Suite C-350
Everett, Washington 98208
(425)347-7513

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The court uses a 3-part test to determine if there has been an impairment of public

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contract: (1) does a contractual relationship exist, (2) does the legislation substantially

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impair the contractual relationship, and (3) if there is a substantial impairment, is it

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reasonable and necessary to serve a legitimate public purpose. Caritas, at 403 [869 P.2d

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28]; Carlstrom v. State, 103 Wn.2d 391, 694 P.2d 1 (1985).

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As it currently stands, the legislation does not impair the contracts alleged by the
plaintiffs at all, given that I-976 is not yet law.
However, to claim a competitive right to stop the public purpose of the fair exercise
of the initiative power, plaintiffs have the burden of demonstrating that their contracts

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contained a reservation of powers clause. Such language is required and must specifically

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and explicitly mention future retroactive modification of preexisting or already performed

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contracts. Caritas Servs. v. Department of Social & Health Servs., 123 Wash.2d 391, 406-

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07, 869 P.2d 28 (1994). Explicit language is needed to constitute a reservation of powers

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clause. In Carlstrom v. State, 103 Wash.2d 391, 393, 694 P.2d 1 (1985), we held that a

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general clause saying the agreement was “subject to all present and future acts of the

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legislature” was not explicit as to future appropriations legislation affecting a salary

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increase provision.

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The question about which contracts plaintiffs speculate may be impair begged this

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factual question. If such a factual question is present, and it is material to the disposition

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of this case, summary judgment is inappropriate and does not lie. CR 56.

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"Even if a substantial impairment of contract occurs, ... it may nonetheless be
constitutional if it was reasonable and necessary to achieve a legitimate public purpose."

INTERVENOR DIDIER’S RESPONSE ON SUMMARY JUDGMENT - 4
STEPHEN W. PIDGEON
Attorney at Law, P.S.
1523 132nd Street SE, Suite C-350
Everett, Washington 98208
(425)347-7513

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Washington Fed. of State Emp. v. State, at 1038, citing Caritas, at 411, 869 P.2d 28 (citing

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United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977)).

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It is Plaintiffs’ assertion that all laws in Washington, whether passed by the

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Legislature or by the people, must comply with the Constitution of the State of

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Washington. Unlike the United States Constitution, there is no Supremacy Clause in

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Washington’s Constitution. Instead, we have two interesting statements: First, Article I,

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Section 1, declares that “[a]ll political power is inherent in the people, and governments

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derive their just powers from the consent of the governed, and are established to protect

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and maintain individual rights.” Second, Article I Section 2 declares that “[t]he

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Constitution of the United States is the supreme law of the land.”
Article II, Section 1 declares that “[t]he legislative authority of the state of

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Washington shall be vested in the legislature, consisting of a senate and house of

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representatives, which shall be called the legislature of the state of Washington, but the

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people reserve to themselves the power to propose bills, laws, and to enact or reject the

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same at the polls, independent of the legislature, and also reserve power, at their own

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option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law

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passed by the legislature.” The right of initiative is not subject to legislative authority in

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any respect, and all statutes or other laws passed by the legislature which attempt to limit

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or regulate the initiative process are per se unconstitutional.

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The acts of the people in bringing an initiative are the paramount exercise of

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constitutional authority and are per se a legitimate public purpose, because the people have

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so spoken. In the case of $30 car tabs, this is the third time the people have so spoken.

INTERVENOR DIDIER’S RESPONSE ON SUMMARY JUDGMENT - 5
STEPHEN W. PIDGEON
Attorney at Law, P.S.
1523 132nd Street SE, Suite C-350
Everett, Washington 98208
(425)347-7513

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The King County Superior Court is not the first Superior Court in the State of

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Washington to consider Initiative 976, and is therefore overruled by the priority of action

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rule, which requires this matter to be heard in Thurston County, where litigation over this

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Initiative first began.

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The "priority of action rule" is that the court which first gains jurisdiction of a

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cause retains the exclusive authority to deal with the action until the controversy is

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resolved. The reason for the doctrine is that it tends to prevent unseemly, expensive, and

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dangerous conflicts of jurisdiction and of process. City of Yakima v. International Ass'n of

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Fire Fighters, 117 Wn.2d 655, 675, 818 P. 2d 1076 (1991), citing Sherwin v. Arveson, 96

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Wn.2d 77, 80, 633 P.2d 1335 (1981). The issue of Initiative I-976 was first raised in the

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case A Challenge to the Ballot Titles for Initiative Measure No. 975 and 976, Initiative to

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the Legislature, Thurston County Superior Court Cause No. 18-2-01704-34 in 2018.

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Thurston County has priority of action.

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Dated this 24th day of January 2020.

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INTERVENOR DIDIER’S RESPONSE ON SUMMARY JUDGMENT - 6
STEPHEN W. PIDGEON
Attorney at Law, P.S.
1523 132nd Street SE, Suite C-350
Everett, Washington 98208
(425)347-7513