FILED

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2020 JAN 31 11:22 AM
KING COUNTY
SUPERIOR COURT CLERK
E-FILED
CASE #: 19-2-30171-6 SEA

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The Honorable Marshall Ferguson
February 7, 2020, at 9:00 a.m.
With Oral Argument
STATE OF WASHINGTON
KING COUNTY SUPERIOR COURT

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GARFIELD COUNTY
TRANSPORTATION AUTHORITY; et al.,

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and
WASHINGTON ADAPT; TRANSIT
RIDERS UNION; and CLIMATE
SOLUTIONS,
Intervenor-Plaintiffs,

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v.

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STATE OF WASHINGTON,

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Defendant,

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DEFENDANT STATE OF
WASHINGTON AND
INTERVENOR-DEFENDANT PIERCE
COUNTY’S COMBINED REPLY IN
SUPPORT OF THEIR MOTION FOR
SUMMARY JUDGMENT

Plaintiffs,

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NO. 19-2-30171-6 SEA

and
CLINT DIDIER; PERMANENT
OFFENSE; TIMOTHY D. EYMAN;
MICHAEL FAGAN; JACK FAGAN; and
PIERCE COUNTY,
Intervenor-Defendants.

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STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 I.

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INTRODUCTION

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Plaintiffs’ response brief highlights their twisting of I-976’s language and ballot title to

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render it unconstitutional. For example, Plaintiffs claim I-976’s parts lack rational unity because

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the initiative’s subject is supposedly “capping recurring motor vehicle charges at the time of

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registration.” Pls.’ Opp’n at 3. But I-976’s topic, expressed in its title, is “motor vehicle taxes

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and fees.” Similarly, in attacking I-976’s title, Plaintiffs claim that the $30 limit mentioned there

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and in I-976’s text “refers to any annual payment that a vehicle owner must make to register a

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motor vehicle.” Id. at 8. But that language appears nowhere in I-976 and that reading of the

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measure and title is incorrect.

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This Court’s duty is to reject Plaintiffs’ distortions and instead, wherever possible, read

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I-976 so as to preserve its constitutionality. Wash. Fed’n of State Emps. v. State, 127 Wn.2d 544,

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556, 901 P.2d 1028 (1995) (WFSE). Exercising that duty, the Court should uphold I-976.
II.

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A.

ARGUMENT

Article II, Section 19 – Subject-in-Title Requirement

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Plaintiffs’ arguments regarding article II, section 19’s subject-in-title requirement

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continue to rest on misreading the title. Defendants have repeatedly explained how the two

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clauses in I-976’s title are distinct, and how the references to a $30 limit and voter-approved

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charges are found in and apply only to the second clause. WA PI Opp’n (PI Opp’n) at 19-21;

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Defs.’ MSJ at 14-16; Defs.’ MSJ Opp’n (Defs.’ Opp’n) at 2-4. Defendants have explained how

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the second clause refers only to “motor-vehicle-license fees,” a subset of the “vehicle taxes and

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fees” referenced in the first clause that is constitutionally distinct under Washington

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Constitution, article II, section 40. PI Opp’n at 21 n.3; Defs.’ Opp’n at 3. Defendants have

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explained why the definition of “state and local motor vehicle license fees” in I-976, section 2(2)

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excludes taxes like MVETs and local TBD fees used for local transit purposes, which cannot

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constitutionally be understood to be “vehicle license fees.” PI Opp’n at 21 n.3; Defs.’ MSJ at 16;

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Defs.’ Opp’n at 3. Indeed, Plaintiffs have never explained how their use of MVETs and TBD
STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

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fees for non-highway purposes could be constitutional if those charges are “motor-vehicle-

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license fees.” And Defendants have explained how the ancillary fees charged under RCW 46.17,

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which make total state charges for car tabs exceed $30, are not “vehicle license fees.” Defs.’

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MSJ at 15-16; Defs.’ Opp’n at 3-4.

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Defendants have refuted every argument Plaintiffs raise in their subject-in-title

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challenge. And even if the Court had doubt about the meaning of terms in I-976 or its title, it

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must construe the language in favor of the Initiative’s constitutionality. WFSE, 127 Wn.2d at

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556; Pierce Cty. v. State, 150 Wn.2d 422, 436, 78 P.3d 640 (2003). Plaintiffs have not met their

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burden of demonstrating beyond a reasonable doubt that I-976 violates the subject-in-title

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requirement.

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B.

Article II, Section 19 – Single Subject Requirement

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Plaintiffs purport to identify seven “disparate” subjects in I-976, which they claim defeats

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rational unity. Defendants already explained why Plaintiffs’ tactic conflicts with the liberal

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interpretation used in assessing whether the topics in an initiative have rational unity. Defs.’

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Opp’n at 5 (citing Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 784, 357 P.3d 1040

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(2015)). Defendants also explained how even the cases Plaintiffs cite do not apply the narrow

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germaneness test they extract from City of Burien v. Kiga, 144 Wn.2d 819, 825, 31 P.3d 659

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(2001), relying instead on the interactions between provisions to find rational unity. Defs.’ Opp’n

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at 5-6.

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Indeed, if Plaintiffs’ narrow approach were correct, neither the People nor the Legislature

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could adopt any meaningful comprehensive legislation, because challengers could always find

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ways to claim a lack of relationship among some parts of comprehensive measures. Measures

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like I-276 (adopting campaign finance reform, regulation of lobbyists, reporting requirements

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for elected officials, and public records laws) and I-1183 (privatizing distribution and sales of

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spirits and wine, establishing new taxes and fees on producers and distributors, and creating a

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public safety fund) would have been overturned. But those measures were upheld in singleSTATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

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subject challenges under article II, section 19. See Fritz v. Gorton, 83 Wn.2d 275, 289-91, 517

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P.2d 911 (1974) (upholding I-276); Wash. Ass’n for Substance Abuse & Violence Prevention v.

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State, 174 Wn.2d 642, 654-60, 278 P.3d 632 (2012) (upholding I-1183). Defendants have shown

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how the incidental subjects in I-976 are rationally related to its general title and to one another,

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Defs.’ Opp’n at 5-8, and Plaintiffs have not demonstrated beyond a reasonable doubt how I-976

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is so different from initiatives like I-276 and I-1183 as to violate the single-subject requirement.

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C.

Article II, Section 37

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I-976 fully complies with article II, section 37. Defs.’ MSJ at 16-20; Defs.’ Opp’n at

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8-10. Defendants rely on their existing briefing except to correct the following errors by

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Plaintiffs.

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Plaintiffs incorrectly assert that RCW 36.73.040 and .065 “independently and

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affirmatively authorize TBDs to impose and collect” vehicle fees. Pls.’ Opp’n at 11. Those

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statutes both identify RCW 82.80.140 as the source of authority. Plaintiffs’ contention that

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RCW 36.73.065(6) “authorizes voter-approved VLFs” is wrong. That subsection addresses the

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process for voter approval of TBD vehicle fees; it does not itself authorize such fees.

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The additional materials Plaintiffs cite do not support their argument. Plaintiffs rely on a

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court filing in a ballot title challenge and a newspaper article quoting the initiative sponsor and

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a Department of Licensing spokesperson. Pls.’ Opp’n at 15. Each source confirms that additional

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fees in RCW 46.17 apply or could apply. Courts must interpret statutes so as to render them

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constitutional. State v. Watkins, 191 Wn.2d 530, 535, 423 P.3d 830 (2018). Even if I-976 were

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ambiguous, it should be interpreted to avoid an article II, section 37 violation. I-976 does not

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impact any fees in RCW 46.17 except those expressly mentioned.

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D.

Article VII, Section 5

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As Defendants previously explained, Defs.’ Opp’n at 15-17, I-976 does not run afoul of

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article VII, section 5. Plaintiffs’ recitation of Sheldon v. Purdy, 17 Wash. 135, 49 P. 228 (1897)

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does not alter this conclusion. In Purdy, all relevant parties were before the court and there were
STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

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no factual issues as to how bondholders’ debt would be paid (i.e., which taxes would have to be

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diverted to pay the bond coupons). Here, by contrast, Plaintiffs are claiming that section 12 of

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I-976 would improperly divert Sound Transit’s MVET revenue through potential bond

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defeasement even though Sound Transit is not a party to this action, Sound Transit’s bond

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contracts are not before the Court, Sound Transit has not asserted that its bonds can be defeased,

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the MVET provides only 12% of Sound Transit’s revenue (Copsey Reply Decl., Ex. A at 10),

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and there has been no discovery as to which revenue streams could be used to defease Sound

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Transit’s bonds (including Sound Transit’s $600 million “unrestricted cash balance,” id.).

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Therefore, any claims of tax diversion related to Sound Transit are speculative at this juncture

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and should be dismissed. See Snohomish Cty. v. Anderson, 124 Wn.2d 834, 840, 881 P.2d 240

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(1994) (affirming dismissal of statutory challenge where particular provisions had not been

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implemented and claim was speculative). Nor should Plaintiffs be permitted to litigate this issue

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on Sound Transit’s behalf. Cf. id. (recognizing other parties were “in a better position to litigate

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these issues”).

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E.

Article XI, Section 12
Plaintiffs’ article XI, section 12 “vesting” argument fails for the reasons explained in

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Defs.’ Opp’n at 10-12 and Pierce Cty.’s Resp. at 1-4.

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F.

Article I, Section 19

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Plaintiffs’ argument related to article I, section 19 consists of three incorrect contentions.

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First, I-976 does not “retroactively interfer[e]” with Seattle TBD’s 2014 election. Pls.’

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Opp’n at 17. I-976 operates only prospectively and has no effect on anyone’s “free exercise of

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the right of suffrage” in the 2014 election. Wash. Const., art I, § 19.

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Second, I-976 did not involve interference by “outside voters.” In approving I-976,
statewide voters addressed a question of state law.
Third, Seattle TBD voters had a meaningful opportunity to vote on the authority of TBDs
under Washington law because they could vote on I-976 just like other Washington voters.
STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

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G.

Separation of Powers

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In their opposition to Defendants’ MSJ, Plaintiffs rely heavily on Ruano v. Spellman,

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81 Wn.2d 820, 505 P.2d 447 (1973), and City of Port Angeles v. Our Water-Our Choice!,

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170 Wn.2d 1, 239 P.3d 589 (2010), to argue that state initiative power cannot intrude on local

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administrative decisions. But Ruano, like the cases Plaintiffs previously cited, involved a local

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initiative and did not discuss limitations on state initiative power. Ruano does not even cite article

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II, section 1. Port Angeles cites article II, section 1 only to observe that it does not apply to local

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initiatives. 170 Wn.2d at 8.

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In any event, I-976 does not purport to administer the law. It is a legislative act as defined

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in Ruano, because it enacts “new law or policy” that changes the taxing authority legislatively

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granted to certain municipal corporations.

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Plaintiffs also suggest there must be a difference between a contingency that allows an

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entire statute to take effect and one that allows only a specified portion to take effect, but they

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don’t identify the legal significance of any such difference. Instead, they simply repeat their

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assertion that I-976 section 16 unconstitutionally delegates legislative authority. Defendants

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have fully answered that assertion. Defs.’ MSJ at 22; Defs.’ Opp’n at 18.

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H.

Impairment of Contracts

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The “heavy burden” of proving I-976 unconstitutional rests on Plaintiffs, Amalgamated

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Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000), yet Plaintiffs ask

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this Court on summary judgment not only to resolve disputed facts about bonds issued by Burien,

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but to extend its holding to cities who are not parties to this case and whose bond documents are

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not before the Court. Pls.’ Opp’n at 24. The Court should refuse. Plaintiffs’ contention that the

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State’s argument is somehow contrary to the stipulated briefing schedule makes no sense: as

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Defendants previously explained, Defs.’ Opp’n at 20, the City of Burien was added to this action

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after the parties’ MSJ schedule was issued. And although Defendants received some (but not all)

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of the documents that Plaintiffs relied upon in their MSJ during the week the parties’ MSJs were
STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

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due, there has been no formal discovery on this issue. Summary judgment on this issue is

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premature.

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III.

CONCLUSION

For the foregoing reasons, Defendants’ MSJ should be granted and Plaintiffs and
Intervenor-Plaintiffs’ MSJs should be denied.
DATED this 31st day of January, 2020.

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ROBERT W. FERGUSON
Attorney General

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/s/Alan D. Copsey
ALAN D. COPSEY, WSBA #23305
ALICIA YOUNG, WSBA #35553
KARL SMITH, WSBA #41988
Deputy Solicitors General
LAURYN K. FRAAS, WSBA #53238
Assistant Attorney General
Attorneys for Defendant State of Washington

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MARY ROBNETT
Prosecuting Attorney

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/s/Daniel R. Hamilton
DANIEL R. HAMILTON, WSBA #14658
FRANK A. CORNELIUS, WSBA #29590
Pierce County Prosecutor/Civil
Attorneys for Intervenor-Defendant Pierce County

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We certify that this memorandum contains 1748
words, in compliance with the Local Civil Rules.

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STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

 CERTIFICATE OF SERVICE

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I hereby declare that on this day true copies of the foregoing document were served via

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CM/ECF and by email upon the following parties:

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Contacts for Plaintiff King County:

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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

Contact for Plaintiff-Intervenors Washington ADAPT, Transit Riders Union, and Climate
Solutions:
Name, Title:
Knoll Lowney, Attorney

Email:
knoll@smithandlowney.com

Contact for Intervenors Permanent Offense, Timothy Donald Eyman, Jack Fagan, and
Michael Fagan:
Name, Title:
Mark D. Kimball, Attorney

Email:
mkimball@mdklaw.com

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STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200

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Contact for Intervenor Clint Didier:
Name, Title:
Stephen W. Pidgeon, Attorney

Email:
Stephen.pidgeon@comcast.net

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DATED this 31st day of January, 2020, at Seattle, Washington.

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s/Morgan Mills
MORGAN MILLS
Legal Assistant

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STATE OF WASHINGTON AND PIERCE
COUNTY’S COMBINED REPLY BRIEF
NO. 19-2-30171-6 SEA

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ATTORNEY GENERAL OF WASHINGTON
Solicitor General’s Office
P.O. Box 40100
Olympia, WA 98504-0100
(360) 753-6200