FILEDHONORABLE MARSHALL FERGUSON

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2020 JAN 31 12:00 PM
KING COUNTY
SUPERIOR COURT CLERK
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
TRANSPORTATION AUTHORITY; et
al.,
Plaintiffs,

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and

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

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STATE OF WASHINGTON,

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Defendant,

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and

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

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PLAINTIFFS’ REPLY IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT

v.

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No. 19-2-30171-6 SEA

Intervenor-Defendants.

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I.

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INTRODUCTION

The extensive briefing before this court demonstrates that voters were misled and
deceived into voting for an initiative that had no regard for constitutional requirements. The
ballot title made deceptive and misleading promises. Multiple unrelated subjects were log-rolled
into one measure. Statutes were amended without necessary disclosure. Major subjects were
omitted from the ballot title and hidden deep in the initiative text. The home rule rights of local

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communities were vitiated. In the face of these and other substantial constitutional violations,

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this Court should grant Plaintiffs’ motion for summary judgment and declare I-976

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unconstitutional.

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II.
A.

LEGAL ARGUMENT

The Standard of Review Does Not Allow the State to Rewrite the Initiative and
Its Ballot Title to Create a Constitutionally Reformed Measure That Was Never
Passed By Voters.
Throughout its briefing, the State urges the court to somehow “construe” the initiative

text and the ballot title to be constitutional. But sometimes a sow’s ear is just a sow’s ear,

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leaving it improper for a court to rewrite language that was presented to voters. Unlike regular

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enactments, initiatives are “to be read as the average informed lay voter would read it.”

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Washington Ass’n for Substance Abuse & Violence Prevention v. State (“WASAVP”), 174 Wn.2d

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642, 662 (2012). Overly technical readings of initiatives “ignore the subject-in-title rule’s
purpose of providing notice to the public of the contents of the measure.” Id. (emphasis added).
The State cannot, under the guise of a “constitutional interpretation,” propose a construction

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inconsistent with how the average lay voter would have read the initiative. This is the only way

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to preserve the article II, section 19 (“Section II-19”) requirement of transparency and honesty in

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legislative enactments, which ensures that “no person may be deceived as to what matters are

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being legislated upon.” Seymour v. City of Tacoma, 6 Wash. 138, 148–49 (1893).

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Similarly, the court should reject the State’s talismanic invocation of the “beyond a
reasonable doubt” standard to avoid I-976’s readily apparent constitutional deficiencies. It is not
an evidentiary standard addressed to the weight or number of arguments. Island Cty. v. State,

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135 Wn.2d 141, 147 (1998). Instead, the standard “refers to the fact that one challenging a

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statute must, by argument and research, convince the court that there is no reasonable doubt that

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the statute violates the constitution.” Id. It is “ultimately” the proper role of the judiciary to

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“make the decision, as a matter of law, whether a given statute is within the legislature’s power
to enact or whether it violates a constitutional mandate.” Id. (emphasis added).
B.

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I-976’s False and Misleading Ballot Title Violates the Constitution.
The State does not dispute the Section II-19 rule that a false and misleading ballot title,

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by itself, vitiates a measure, but it fails to present any argument accurately tying the ballot title to

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the I-976 text. Instead, the State claims that the ballot title refers only to definitions of motor

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vehicle licensing in article II, section 40 (“Section II-40”) and RCW 46.04.671 – a “specific

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type of [state] fee that may only be used for highway purposes” that excludes local registration

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fees like TBD VLFs and MVETs. State’s Opp’n at 3. This argument is both incorrect and
irrelevant.
First, the State’s analysis fails the “average lay voter test.” Neither Section II-40, nor

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RCW 46.04.671 are even mentioned in I-976. 1 No average lay voter would read the ballot title

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Even if the State were correct that a voter should focus on these provisions, a Section II-19
violation would still be present because the ballot tile cannot “give[] notice that would lead to an
inquiry into the body of the act” when the referenced provisions are not contained in the body of
I-976. See ATU, 142 Wn.2d at 217 (discussing constitutional standard for non-deceitful ballot
titles).
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and the text of the initiative and leap to the State’s narrow definition based on unreferenced legal

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sources. In fact, even the “explanatory statement” prepared by the Attorney General and

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included in the Voter’s Pamphlet makes no mention of Section II-40 or RCW 46.04.671. See
Hackett Decl., Dkt. 151, Ex. 2. Rather than limiting motor vehicle fees to the state fee covered
by these definitions, the explanatory statement unambiguously represents that “[t]he measure

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would limit annual state and local license fees for motor vehicles…to $30, unless the fee is

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approved by voters.” Id. (emphasis added). In the end, the State cannot escape its own

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admission that taxpayers, i.e. average lay voters, “may not have distinguished between these fees

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because they were paid at the same time and some had similar names….” State’s Mot. at 2.

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Second, the State’s effort to render the ballot title truthful by using unreferenced, outside
legal sources fails because the purpose of a ballot title is to put voters on “notice” of “the subject
matter of the measure.” Amalgamated Transit Union Local 587 v. State (“ATU”), 142 Wn.2d

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183, 207 (2000). In evaluating compliance under Section II-19, a court necessarily “examines

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the body of the act to determine whether the title reflects the subject matter of the act,” not the

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content of an unreferenced act. Washington Fed’n of State Employees v. State, 127 Wn.2d 544,

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556 (1995) (emphasis added). With reliance on Section II-40 and RCW 46.04.671 properly
discarded, 2 the State does not otherwise dispute the broad and controlling definition of “state and
local motor vehicle taxes” established by section 2 of I-976. This definition is “liberally
construed” to include any annual payment that a vehicle owner makes to register a motor vehicle
and obtain renewed car tabs. See Plfts.’ Mot. at 22-23. Accordingly, the State’s claim that the

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It bears pointing out that Section II-40 is not a constitutionally mandated definition of
“vehicle license fees” applicable to all statutes, but rather, a requirement that the expenditure of
certain revenues is limited to road purposes.
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ballot title’s reference to voter-approved charges is limited to specific state fees does not reflect

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the text of I-976. Thus, the ballot title is false and misleading

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Absent an improper incorporation of Section II-40 and RCW 46.04.671 into I-976, the
State lacks any other arguments to defend the deceitful ballot title claims of $30 car tabs and
voter-approved exceptions. The State concedes the “the measure leaves in place a variety of fees

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charged under RCW 46.17…which will make total State charges for car tabs exceed $30.”

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State’s Opp’n at 4. The unavoidable result of this concession is that the representation in the

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ballot title (and the explanatory statement) of $30 car tabs is false. To be true, I-976 would need

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to be interpreted to eliminate fees above $30, which would establish an article II, section 37
violation. See Section II(D), infra. Similarly, I-976 leaves voters without any means to exceed
$30 tabs, which renders another key ballot title claim false. Under any scenario, I-976 is
unconstitutional.
Finally, the I-976 ballot title violates Section II-19 because it does not include major

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subjects of the initiative, thereby leaving voters without notice of those subjects. The State

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freely admits that the I-976 ballot title fails to mention bonds. State’s Opp’n at 4. It claims that

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the ballot title “could not have possibly mentioned every tax or fee affected by the measure,”
but I-976’s requirement for bond defeasement or retirement is neither a tax, nor a fee. Likewise,
the State’s assertion that the “measure’s impact on bonds is directly related to facilitating the tax
reductions mentioned in the title,” State’s Opp’n at 4, even if it were true, would not avoid a

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subject-in-title violation. Per the ballot title, I-976 concerns only “motor vehicle taxes and fees,”

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not “substantially increased expenditures and redirection of revenue to prematurely defease or

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refinance low interest bonds.” The ballot title’s failure to provide any notice of the bond

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provisions violates Section II-19.

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C.

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I-976 Offends the Single Subject Rule Because Each Individual Section of the
Initiative Must Be, But Is Not, Germane to Every Other Section.
Plaintiffs are entitled to summary judgment on their single subject challenge primarily

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because rational unity does not exist among all seven of the initiative’s subjects. Despite having

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multiple chances, the State has never addressed how the individual sections of I-976 are germane

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to one another. Rather, the State merely asserts in passing that all of the subjects are “germane to

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the overarching subject of motor vehicle taxes and fees.” State’s Opp’n at 6. But that is the
same as saying the subjects are all germane to the ballot title, and inappropriately collapses the
“two-part” rational unity test into one. See Am. Hotel & Lodging Ass’n v. City of Seattle, 6 Wn.
App. 2d 928, 943-45 (2018), review granted, 193 Wn.2d 1008 (2019), dismissed, (Oct. 21,
2019). 3

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The State’s attempt to distinguish Plaintiffs’ single subject cases fails. The single subject
challenges were successful in those cases because the measure at issue combined at least two
subjects that were fundamentally different in type, not because one provision was unrelated to
the overarching subject. See Lee v. State, 185 Wn.2d 608, 622-23 (2016) (onetime reduction in
sales tax was different in kind from a change in the way all future tax increases were to be

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approved); City of Burien v. Kiga, 144 Wn.2d 819, 826 (2001) (similar); ATU, 142 Wn.2d at

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216-17 (similar); Am. Hotel & Lodging Ass’n, 6 Wn. App. 2d at 943-45 (voiding initiative under

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single subject rule because section 1 was unrelated to sections 2, 3, and 4 and section 4 was

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unrelated to sections 2 and 3). Similarly here, I-976 runs afoul of the single subject rule because

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it combines subjects of statewide and local effect (e.g., state MVET and local vehicle taxes);

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The State’s citation to Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770 (2015), is
misleading, as the quoted language pertains only to the relationship between the title and the
subjects, not between each individual subject. See id. at 782.
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subjects of an ongoing and a onetime nature (e.g., recurring vehicle registration fees and a

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retirement of specific bonds); and subjects that have historically been addressed separately (i.e.,

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state MVET (title 46 RCW), local TBD MVET (chapter 82.80 RCW), Sound Transit MVET
(title 81 RCW), and state tax on vehicle sales (chapter 82.08 RCW)). 4
The State argues that what section 12 requires Sound Transit to do to retire or defease

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bonds is irrelevant. But section 12 is not a generally applicable law that potentially results in

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expense incidental to its application. In the State’s own words, section 12 is an affirmative

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directive to a specific agency to refinance, retire or defease a specific set of bonds. Dkt. 42 at 16.

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Sound Transit is not a general purpose government, but a regional transit authority with limited
revenue restricted to providing high capacity transportation service. E.g. RCW 81.104.160(1).
Thus, the words of section 12 require reconfiguration of debt and reallocation of revenues. See
Butler Decl., Dkt. 149, ¶5, 17, 20-24. This mandated one-time expenditure of Sound Transit’s

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revenue is a “‘wholly different subject from’” sections 6 through 11, which purport to “limit

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taxation.” Pltfs.’ Mot. at 31 (quoting City of Burien, 144 Wn.2d at 829 (Sanders, J.,

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concurring)).

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The State’s contention that section 12 is necessary to implement sections 10 and 11
further emphasizes why it is not germane to the remainder of I-976. The State suggests section
12 is a means to overcome what would otherwise be a constitutional deficiency in sections 10
and 11. But imposing a flawed method to overcome a constitutional deficiency is its own

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subject. The Court of Appeals rejected an argument similar to the State’s in Kunath v. City of

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Seattle, 444 P.3d 1235, 1249 (Wash. Ct. App. 2019). There, it was argued that “SSB 4313 had

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The State’s citation to ATU with regard to the vehicle sales tax provision of I-976 is
misplaced because no rational unity existed in ATU.
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rational unity because article XI, section 16 of the constitution requires that any restriction

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imposed on a city-county also be imposed on cities and counties, and SSB 4313 was intended to

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implement article XI, section 16.” Id. The Court rejected this premise because it “fail[ed] to
identify the required rational unity between all five operative sections of the bill.” Id.
At the injunction hearing, the Court presciently asked whether section 12 was necessary

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to implement “$30 car tabs.” Supplemental Declaration of Jessica Skelton (“Suppl. Skelton

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Decl.”), Ex. C at 115:21-116:2. Notably, the State has abandoned any pretext that section 12 (or

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sections 10 and 11) are necessary to implement $30 tabs, or that I-976 even establishes $30 tabs.

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The lack of any relationship between section 12 and $30 car tabs is simply logrolling. The same

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is true of other sections, including the sales tax and valuation methodology.
The Court should grant summary judgment to Plaintiffs on their single subject claim and

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invalidate I-976 in its entirety.
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I-976 Violates Article II, Section 37.
The State fails to effectively refute Plaintiffs’ arguments that I-976 violates article II,

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section 37 (“Section II-37”). First, the State’s claim that I-976 may be parsed into “subjects” for

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purposes of Section II-37’s complete act determination—ironic in light of its “single subject”

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argument—fails for the reasons set forth in Plaintiffs’ Opposition at 12-13. Contrary to the
State’s claims, I-976 does not “fully declare[] its terms.” See State’s Opp’n at 9. Rather, I-976
amends or repeals existing fees and taxes; thus, it is amendatory in nature and not complete. See

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Washington Citizens Action of Wash. v. State, 162 Wn.2d 142, 159 (2007). Regardless, the State

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ignores the second prong of the Section II-37 test, which invalidates I-976 even if the initiative is

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complete. Like the legislation in El Centro De La Raza v. State, 192 Wn.2d 103, 129-32 (2018),

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I-976 violates Section II-37 by failing to disclose significant changes to existing legislation,

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specifically to RCW 36.73.040 and .065 and to chapter 46.17 RCW’s vehicle fee scheme,

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rendering erroneous any attempt at a “straightforward determination of the scope of rights or

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duties” under those provisions.

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Second, the State grossly mischaracterizes the source of TBD VLF authority as limited to
RCW 82.80.140. See Plaintiffs’ Opp’n at 11-12. VLF authority is explicitly granted in the TBD

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authorizing statutes, specifically RCW 36.73.040(3) (“a district is authorized to impose the

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following…fees”) and .065(4) (“[a] district…may impose…the following fees”). 5 The State’s

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arguments about the source of TDB VLF authority do not and cannot alter the fact that I-976

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actually amends RCW 36.73.040 and .065 without setting out those amendments.

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Third, the State summarily claims that this Court should interpret I-976 to somehow
render it constitutional under Section II-37. But interpreting I-976 to allow VLFs in excess of
$30 (as the State advocates) renders the ballot title false and misleading in violation of Section

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II-19. See Pltfs.’ Mot. at 21-25, 37-39; Pltfs.’ Opp’n at 7-10, 14-15. Under either construction,

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I-976 violates the Constitution.

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Finally, I-976 sows significant confusion regarding voters’ ability to enact vehicle fees in
excess of the $30 cap. I-976’s ballot title and text purport to retain “voter-approved charges,”
such as TBD VLFs. See Segal Decl., Dkt. 24, Ex. A at §§ 1-2 & Ex. B. I-976 repealed RCW
82.80.140, but failed to disclose resulting amendments to chapter 36.73 RCW, including the
voter-approved VLF provision in RCW 36.73.065(6).
In sum, the Court should grant Plaintiffs summary judgment on their Section II-37 claim.

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The State also erroneously relies on the “authorized in” language in RCW 36.73.065, but
ignores similar language in RCW 82.80.140 stating that TBD VLFs are charged “under” RCW
36.73.065. See State’s Opp’n at 9. The only logical interpretation is that each of these statutory
schemes authorize TBD VLFs.
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E.

I-976 Unconstitutionally Interferes With Home Rule Under Article XI, Section
12.

Rather than fully addressing Plaintiffs’ article XI, Section 12 (“Section XI-12”) argument on

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the merits, the State seeks refuge in an over-reaching interpretation of Pierce Cty. v. State, 150

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Wn.2d 422, 436 (2003) (“Pierce County I”). But Plaintiffs have already provided this court with

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the briefing from that case that demonstrated how Plaintiffs’ vesting argument – based on

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specific language in the last clause of Section XI-12 – is distinct from the arguments made and
issues decided in Pierce County I. See Plfts.’ Mot. at 46-47. Indeed, the State’s co-defendant,
Intervenor Pierce County, agrees the State “is itself mistaken when it asserts there is a case that
‘rejects [Plaintiffs’] argument.’” Dkt. 165 at 2. Certainly, Pierce County I is not such a case

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because the Supreme Court “was never presented with the Plaintiffs’ argument that local taxing

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power cannot be removed by the state legislature or the vote of those outside the taxing authority

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after it has been exercised and is being collected by a local government for local purposes.” Id.

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at 2-3 (emphasis in original).
Relying exclusively on a 2002 dictionary definition, the State asserts that a “more
common meaning of ‘vest’ is simply ‘to grant or endow with a particular authority, right or

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property.’” State’s Opp’n at 11. But a 2002 dictionary definition says nothing about the

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meaning of “vest” in 1889 when our constitution was adopted. “The constitution must be

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construed in the sense in which the framers understood it in 1889.” Boeing Aircraft Co. v.

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Reconstruction Fin. Corp., 25 Wn.2d 652, 658 (1946). The State’s interpretation makes no

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sense: if “vested” taxing authority can be eliminated at any time (even in the middle of a local
project), then what in fact has vested?
Numerous sources from the time of Section XI-12’s adoption confirm that “vest” means
more than an ethereal delegation. See Plfts.’ Mot. at 44-45. The most powerful evidence of the
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term’s meaning is Pearsall v. Great N. Ry. Co., 161 U.S. 646, 673 (1896), where a vested right

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was defined as an “immediate, fixed right of present or future enjoyment” and “an immediate

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right of present enjoyment, or a present fixed right of future enjoyment.” Our founders
understood that a right, once vested, precluded legislative interference. See, e.g. Templeton v.
Linn Cty., 22 Or. 313, 318, 29 P. 795, 797 (1892) (“Vested rights are placed under constitutional

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protection, and cannot be destroyed by legislation.”); Watuppa Reservoir Co. v. City of Fall

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River, 147 Mass. 548, 552, 18 N.E. 465, 469 (1888) (“Under the power to alter, amend, or

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repeal, the legislature cannot interfere with vested rights, or do anything that will substantially

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and directly impair the object of the grant.”); Judd v. Judd, 125 Mich. 228, 231, 84 N.W. 134,

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135 (1900) (“[T]he legislature cannot interfere with vested rights.”).
By vesting a legislative delegation of taxing authority, Section XI-12 protects the

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continued exercise of that local taxing authority for a local purpose against state interference.

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See State v. Redd, 166 Wash. 132, 137 (1932). The facts of Redd demonstrate that Section XI-12

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precludes later state legislation that interferes with a previously vested, i.e. “absolute and

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complete,” delegation. Id.

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The State’s final theory, joined to a degree by Pierce County, 6 is that Section XI-12
should be ignored because there is purportedly no case expressly precluding legislative efforts to
condition or repeal previously vested taxing authority. State’s Opp’n at 12. This is wrong,
because Redd and Longview Co. v. Lynn, 6 Wn.2d 507 (1940) are two such cases. Regardless,
Section XI-12 is itself an established limitation on legislative power. Watson v. City of Seattle,

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Pierce County offers the novel theory that Plaintiffs cannot obtain summary judgment under
Section XI-12 absent “settled law.” Of course, this begs the question of how any constitutional
principle could ever become settled law. In any event, the cases by Pierce County simply deny
summary judgment based on disputed material facts, not unsettled law.
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189 Wn.2d 149, 166 (2017). When a statute violates the constitution, it is “the duty of the court

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to invalidate” it. Windust v. Dep’t of Labor & Indus., 52 Wn.2d 33, 37 (1958). Because Section

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XI-12 precludes subsequent state legislative interference with vested municipal taxing authority
to collect local taxes for local purposes, I-976 is unconstitutional on this independent basis.
F.

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I-976 Violates Article I, Section 19 by Interfering with Free Elections.
The State miscomprehends the scope of article I, section 19 (“Section I-19”). Section I-19

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both bars statewide voters from retroactively interfering with the results of certain local elections

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and entitles local voters to a meaningful vote on issues of local concern.

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After-the-fact interference with an election is as constitutionally significant as polling day
interference. See Section I-19 (prohibiting interference “at any time”). Limiting Section I-19 to
“how elections are conducted,” State’s Opp’n at 12, simply ignores the full text of the provision. 7
Rather than advocating for election results “standing in perpetuity” as the State suggests,

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Plaintiffs advance a narrow proposition. Seattle’s 2014 VLF election authorized six years of

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revenue for a quintessentially local purpose—a far cry from an attempt by local voters to “forever”

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tie the hands of statewide voters on subsequent legislation regarding an issue of statewide concern.

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See State’s Opp’n at 13. I-976 could have avoided this constitutional infirmity by grandfathering

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in prior voter approved VLFs until the voter authority expired. In Seattle’s case that would be until
December 2020.
Moreover, even if statewide voters enjoy the “constitutional power to rescind” local

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authority, Section I-19 circumscribes that power. Protections for meaningful votes regarding local

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concerns would be empty if statewide voters were free to jettison disfavored local election results.

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Carlisle v. Columbia Irrigation District, 168 Wn.2d 555, 578 (2010), evaluated whether
voters were entitled to an election, and provides no support for the State’s argument that the
Section I-19 is limited to providing procedural safeguards. State’s Opp’n at 13-14.
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See City of Seattle v. State, 103 Wn.2d 663, 673 (1985). Here, voters with no stake in Seattle’s

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VLF were incentivized to rescind Seattle’s VLF in order to obtain a reduction in statewide vehicle

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fees. See Plfts.’ Mot. at 52. A majority of Seattleites voted against I-976 and approved the 2014
VLF, which is a strong indication that outside voters diluted the votes of the local electorate. Cf.
Gold Bar Citizens for Good Gov’t v. Whalen, 99 Wn.2d 724, 730-31 (1983) (unaffected outside
voters diluted votes of local electorate). I-976 violates Section I-19.
G.

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Plaintiffs are also entitled to summary judgment under article VII, section 5 (“Section

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I-976 Violates Article VII, Section 5 by Diverting Taxes Raised Solely for
Specific Transit Projects.

VII-5”) based on Sheldon v. Purdy, 17 Wash. 135, 140-41 (1897) and State ex rel. Latimer v.

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Henry, 28 Wash. 38, 45-46 (1902) – which the State fails to even mention. These cases and the

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undisputed record on summary judgment 8 demonstrate that I-976 unlawfully diverts Sound

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Transit tax revenue from high capacity transportation to wholesale retirement, defeasement or

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refinancing of existing bonds. 9 The State contends without any legal or factual basis that “[u]se
of taxes to pay back bonds they were pledged to secure is far from ‘wholly unrelated,’” but this
is a complete distortion of the record. State’s Opp’n at 16. Contrary to the State’s assertion,

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Plaintiffs explained in detail how I-976 would require a diversion of tax revenue for the purpose

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of incurring and servicing additional and unnecessary debt. See Butler Decl., Dkt. 149, ¶¶ 5, 20-

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The State has neither rebutted Plaintiffs’ evidence, nor has it sought additional discovery
(either by asking the Plaintiffs or moving the Court). See Suppl. Skelton Decl., ¶ 4.
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Plaintiffs agree that Sound Transit is not a party. Plaintiffs have standing on behalf of other
parties, particularly taxpayer Camarata. Pltfs.’ Mot. at 53 n.29; State’s Opp’n at 16. In addition,
per the Amended Complaint, King County and Seattle are also suing on behalf of their citizens,
many of whom live in the Sound Transit service area.
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24. This is the equivalent of requiring the payoff of a low-interest first mortgage with a high

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interest credit card. 10

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H.

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I-976 Violates Separation of Powers.
The State tries to bypass Plaintiffs’ separation of powers arguments, but never squarely

answers them. Because all initiatives, state or local, exercise legislative powers, they cannot
interfere with executive branch functions and must be legislative in nature. Ford v. Logan, 79

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Wn.2d 147, 154-155 (1971). Similarly, contingent legislation cannot rely on the legislative

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judgment of an unrelated body (Sound Transit) to determine the effective date (or effectiveness)

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of parts of I-976. There is no defense for the initiative on either point.

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I.

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I-976 Violates Article I, Section 12 By Establishing a KBB Monopoly.
The Washington Constitution does not permit the granting of exclusive corporate

privileges akin to the establishment of statutory monopolies. Article I, section 12 (“Section I12”), which was passed “during a period of distrust toward laws that served special interests,” is

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meant to “eliminat[e] governmental favoritism toward certain business interests.” Ockletree v.

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Franciscan Health Sys., 179 Wn.2d 769, 775, 782 (2014). The granting of monopolies and other

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special privileges to private corporations falls squarely within constitutional prohibitions. See

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Const., art. 12, § 22 (“Monopolies and trusts shall never be allowed in this state….”); art. II, § 28
(The Legislature is “prohibited from enacting any private or special laws…[f]or granting

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Section 6 also materially modifies the specific stated purpose for which TBDs across
Washington have directed their funding, including the City of Spokane’s six-year street
improvement plan and the City of Vancouver’s capital facilities plan, transportation
improvement plan, and pavement management plan. Simmons Decl., Dkt. 155, ¶ 3; Lopossa
Decl., Dkt. 153, ¶¶ 1-3 & Ex. 1; Pltfs.’ Mot. at 54-55; Pltfs.’ Opp’n at 17. The object of these
revenues was to complete specified projects or plans, not to half-finish.
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corporate powers or privileges.”). The framers had “anticompetitive concerns” directly in mind.

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Ockletree, 179 Wn.2d at 782. 11

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Here, the exclusive monopoly privilege granted to Kelly Blue Book (“KBB”) by I-976
directly implicates these prohibitions against corporate favoritism, a “fundamental attribute” of
state citizenship in Washington. See Grant Cty. Fire Prot. Dist. No. 5 v. City of Moses Lake, 150

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Wn.2d. 761, 813 (2004) (citizenship privileges include “the right to remove to and carry on

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business therein”). There is no “reasonable ground” for such an approach. Certainly, KBB is

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not the only valuation company with the capability to value vehicles. See Segal Decl., Dkt. 24,

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Ex. F at 2 (fiscal note discloses that Penton Media is the current Department of Licensing
(“DOL”) vendor); Declaration of Jenifer Merkel, ¶ 9 (listing other possible vendors).
Nevertheless, I-976 bestows a statutory monopoly and forces DOL to use KBB “valuations . . .
for any future MVET collection.” Segal Decl., Dkt. 23, Ex. F at 16. Implementation requires

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DOL to add KBB valuations to its software and create a new computer interface “through new

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SFTP with business partner.” 12 Id. at 7. This all amounts to a further constitutional violation

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under Section I-12.

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The State’s reliance on Ventenbergs v. City of Seattle, 163 Wn.2d 92 (2004) and Peterson v.
Dep’t of Revenue, 9 Wn. App. 2d 220, review granted 194 Wn.2d 1001 (2019), is misplaced
because neither case involves the establishment of a statutory monopoly. Rather, Ventenbergs
addressed regulatory and police power decisions to designate qualified, legal waste haulers,
while Peterson focused on a prior contract that was alleged to gift public funds. A government’s
ability to choose between qualified vendors for limited contracting options or determine the
adequacy of consideration is substantially different from the I-976 approach of establishing a
statutory mandate for a single vendor.
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The State’s suggestion that DOL could value Washington’s 8,220,494 registered cars by use
of KBB’s free consumer portal defies common sense. Such use would violate the “personal use
only” provision of the terms of service. Hackett Decl., Dkt. 151, Ex. 6 (KBB terms of service).
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J.

I-976 Unconstitutionally Impairs Burien’s Bonds.

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I-976 impairs Burien’s Bonds in violation of article II, section 23(“Section II-23”).

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Rather than address the merits, the State claims it needs “expert discovery.” But it has not

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requested such discovery, nor has it filed any CR 56(f) affidavit. See Suppl. Skelton Decl., ¶ 4.
At this point, the record is established and judgment as a matter of law is appropriate.
Intervenor Didier raises several additional arguments, none of which preclude summary

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judgment in Burien’s favor. First, there is no issue as to justiciability or ripeness of Burien’s

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Section II-23 claim. The Supreme Court has evaluated impairment claims even where the

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initiative in question had been enjoined or otherwise had not taken effect. See, e.g., Pierce Cty.
I, 150 Wn.2d at 427; Wash. Fed’n, 127 Wn.2d at 550.

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As to “reservation of powers,” the Burien Bonds do not reserve for the State (or here, the
People) the power to enact legislation that retroactively amends the Bonds and, thus, these cases

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actually support Plaintiffs. See, e.g., Caritas Servs., Inc. v. Dep’t of Social & Health Servs., 123

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Wn.2d 391, 406-07 (1994) (reservation of powers clause not specific enough to subject contract

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to retroactive alteration).

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Finally, the Court should reject Didier’s claim that the right of initiative is “per se a
legitimate public purpose” justifying contract impairment under the third prong of the Section II23 test. Didier Opp’n at 5. The people, like the government, are bound by the constitution. See
Lee v. State, 185 Wn.2d 608, 619 (2016).
K.

I-976 Is Void In Its Entirety Because It Is Not Severable.
The State concedes that single subject rule violations render initiatives void in their

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entirety. State’s Opp’n at 21 n.5. It also concedes that a false or misleading ballot title similarly

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voids the entire act. See Pltfs.’ Mot. at 20, 63. I-976 should be struck on these grounds alone.

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Moreover, the I-976 severability clause cannot save the initiative from Plaintiffs’ remaining

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constitutional challenges. The question is “whether the legislative body would have enacted the

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remainder of the act” without the invalid portions. League of Women Voters of Wash. v. State,
184 Wn.2d 393, 412 (2015). For example, there is no way to determine whether I-975 would
have passed if Sound Transit’s bonding or valuation provisions are struck down. Because each

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of I-976’s provisions played a significant role in its passage, the unconstitutional provisions are

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not severable and the entire initiative must be struck down.

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L.

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The Priority of Action Rule Does Not Apply.
There is no merit to Didier’s priority of action claim. The prior action he points to is not

an “action” at all, but a long dismissed case. Tim Eyman’s current Thurston County case, filed
after this matter, lacks any true adversity, as the only parties are a pro se Eyman and the State –
both arguing I-976’s constitutionality. See Suppl. Skelton Decl., Exs. A, B. Priority of action

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lies with this court.

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III.

CONCLUSION.

For the foregoing reasons, the Court should grant Plaintiffs motion for summary
judgment and declare I-976 unconstitutional.
This memorandum contains 5,083 words.
DATED this 31st 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, WSBA #49627
Deputy Prosecuting Attorney
Attorneys for King County

By: s/ Carolyn U. Boies
Carolyn U. Boies, WSBA#40395
Erica Franklin, WSBA#43477
Assistant City Attorneys
John B. Schochet, WSBA#35869
Deputy City Attorney
Attorneys for City of Seattle

PACIFICA LAW GROUP LLP
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

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