FILEDHONORABLE MARSHALL FERGUSON 1 2020 MAR 19 03:38 PM Noted for Hearing: March 27, 2020 KING COUNTY Without Oral Argument SUPERIOR COURT CLERK E-FILED CASE #: 19-2-30171-6 SEA 2 3 4 5 6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 7 8 9 10 11 GARFIELD COUNTY TRANSPORTATION AUTHORITY; et al., Plaintiffs, and 12 13 14 WASHINGTON ADAPT; TRANSIT RIDERS UNION; and CLIMATE SOLUTIONS, Intervenor-Plaintiffs, 15 No. 19-2-30171-6 SEA PLAINTIFFS’ EMERGENCY MOTION TO TEMPORARILY CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION v. 16 17 18 19 20 21 22 STATE OF WASHINGTON, Defendant, and CLINT DIDIER; PERMANENT OFFENSE; TIMOTHY D. EYMAN; MICHAEL FAGAN; JACK FAGAN; and PIERCE COUNTY, Intervenor-Defendants. 23 24 25 26 27 PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 1 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 I. INTRODUCTION & RELIEF REQUESTED 2 Plaintiffs respectfully request that the Court temporarily continue the suspension of its 3 decision to lift the preliminary injunction in this case until the Washington Supreme Court can 4 rule on Plaintiffs’ Emergency Motion for Stay Pending Review (“Appellate Stay Motion”). 5 6 7 Plaintiffs have filed a Notice of Discretionary Review to the Washington Supreme Court and plan to file their Appellate Stay Motion as soon as possible and no later than March 24, 2020. 8 Although Plaintiffs will request that the Appellate Stay Motion be considered on an expedited 9 basis, the Washington Supreme Court may require time to consider and rule on Plaintiffs’ 10 11 Appellate Stay Motion, especially considering the impact of COVID-19 on the courts. Thus, Plaintiffs may not be able to secure a decision on that motion by March 27, 2020, the date on 12 which the Court has indicated that the suspension on its order to lift the preliminary injunction 13 14 will end barring further action from a court. This Court may continue that deadline as part of its 15 inherent authority to manage these proceedings. Moreover, a hearing on this issue is not 16 necessary, given that Plaintiffs seek only a temporary continuance and not reinstatement of the 17 injunction from this Court. 18 19 Plaintiffs’ requested temporary continuance serves the interests of judicial and party economy and justice. Allowing Initiative 976 (“I-976”) to take effect would stop the collection 20 of certain taxes and fees, ensuring that Plaintiffs could never recover those amounts, even if 21 22 successful on appeal. Moreover, in the event the Washington Supreme Court decides that the 23 effectiveness of I-976 should be stayed pending appellate review, the State would be required to 24 implement costly new procedures to cease collecting the taxes and fees for a brief period and 25 then switch back to its original procedures. Affording the Washington Supreme Court a 26 reasonable opportunity to decide whether I-976 should continue to be enjoined pending appellate 27 PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 2 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 review is thus in the best interests of all parties. Plaintiffs respectfully request that the Court 2 continue the March 27 deadline for the suspension to be lifted until the Washington Supreme 3 Court can rule on Plaintiffs’ Appellate Stay Motion. 4 II. STATEMENT OF FACTS 5 On November 27, 2019, the Court issued a preliminary injunction in this matter, 6 7 enjoining I-976 from taking effect. Dkt. No. 63. On February 12, 2020, the Court issued its 8 Order on Cross-Motions for Summary Judgment (“SJ Order”), dismissing all but two of 9 Plaintiffs’ claims and holding that the preliminary injunction remained in effect pending 10 11 12 resolution of those claims. Dkt. No. 193. On March 12, 2020, the Court issued its Order on Motions for Reconsideration Regarding Article I, Section 12 Issues (“Reconsideration Order”). Dkt. No. 221. The Reconsideration Order holds, among other things, that the preliminary 13 14 injunction remains in effect for the City of Burien and its article I, section 23 claim, but 15 otherwise the preliminary injunction would be lifted. Id. The Reconsideration Order then 16 suspends the decision lifting the preliminary injunction until a hearing scheduled for March 27, 17 2020. Id. Plaintiffs have filed a Notice of Discretionary Review with the Washington Supreme 18 Court 1 and plan to filed their Appellate Stay Motion as soon as possible, and no later than March 19 24, 2020. 20 III. STATEMENT OF ISSUES 21 Whether the Court should temporarily continue the date to lift the preliminary injunction 22 23 24 in order to allow the Washington Supreme Court sufficient time to rule on Plaintiffs’ Appellate Stay Motion. 25 26 27 1 All parties also have requested, pursuant to CR 54(b), that this Court enter final judgment on the claims already decided by this Court, which will convert Plaintiffs’ request for discretionary review to an appeal as of right. See Rule of Appellate Procedure (“RAP”) 5.1(e). PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 3 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 IV. 2 EVIDENCE RELIED UPON Plaintiffs rely on the pleadings and papers on file in this matter. 3 V. 4 AUTHORITY & ARGUMENT This Court has the authority to continue temporarily the suspension of the order lifting 5 the preliminary injunction. Superior courts have inherent power to stay and to continue their 6 7 proceedings “where the interest of justice so requires.” King v. Olympic Pipeline Co., 104 Wn. 8 App. 338, 350, 16 P.3d 45 (2000). Indeed, “‘the power to stay proceedings is incidental to the 9 power inherent in every court to control the disposition of the causes on its docket with economy 10 of time and effort for itself, for counsel, and for litigants.’” Id. (quoting Landis v. N. Am. Co., 11 299 U.S. 248, 254 (1936)); see also Woodhead v. Disc. Waterbeds, Inc., 78 Wn. App. 125, 129, 12 896 P.2d 66 (1995) (“A trial court also has the discretionary authority to manage its own affairs 13 so as to achieve the orderly and expeditious disposition of cases.”). Here, Plaintiffs request a 14 15 brief continuance in the effective date of the Court’s order lifting the preliminary injunction. 16 This request falls squarely within the Court’s inherent authority to manage the disposition of this 17 matter in a way that serves judicial and party economy and the interests of justice. 18 19 20 Importantly, this Court need not decide whether the preliminary injunction should be reinstated pursuant to RCW 7.40.210. 2 This would duplicate the relief Plaintiffs seek in their Appellate Stay Motion, which will request that the Washington Supreme Court stay the trial 21 22 23 24 25 26 27 court decision pending appellate review pursuant to RAP 8.1(b) and 8.3. Accordingly, this Court 2 RCW 7.40.210 provides: Upon an order being made dissolving or modifying an order of injunction, the plaintiff may move the court to reinstate the order, and the court may, in its discretion, allow the motion, and appoint a time for hearing the same before the court, or a time and place for hearing before some judge thereof, and upon the hearing, the parties may produce such additional affidavits or depositions as the court shall direct, and the order of injunction shall be dissolved, modified, or reinstated, as the court or judge may deem right. Until the hearing of the motion to reinstate the order of injunction, the order to dissolve or modify it, shall be suspended. PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 4 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 need not set a hearing to for it to receive “additional affidavits or depositions” as “the court shall 2 direct” regarding the preliminary injunction. See RCW 7.40.210. Instead, the Court should 3 simply continue its deadline to lift the injunction to allow the Washington Supreme Court 4 sufficient time to decide this issue. To the extent the Court believes it must set a hearing on this 5 6 7 8 9 10 11 issue, however, Plaintiffs’ respectfully request that the Court continue the hearing date by at least 14 days. A continuance of the March 27 deadline would serve judicial and party economy. As discussed above, the continuance would eliminate the need for two courts – this Court and the Washington Supreme Court – to decide whether the injunction should remain in place. Additionally, the requested continuance would retain the status quo in the event the Washington 12 Supreme Court decides to stay this Court’s orders pending appellate review. If the injunction is 13 14 lifted on March 27 and later put back into effect by the Washington Supreme Court, the State 15 would have to implement changes to the collection procedures for the taxes and fees affected by 16 I-976 twice in a short period of time. The State previously has presented evidence regarding the 17 significant costs and complications associated with changing its collection procedures related to 18 19 I-976. See Dkt. Nos. 45, 46. The requested continuance also would serve the interests of justice. As this Court 20 21 22 recognized in the Order Granting Preliminary Injunction, “[i]f the collection of vehicle license fees and taxes stops on December 5, 2019, there will be no way to retroactively collect those 23 revenues if, at the conclusion of this case, the Court concludes that I-976 is unconstitutional and 24 permanently enjoins its enforcement.” Dkt. No. 63 at 6. By contrast, as this Court also 25 recognized, and as the State admits, there is a viable refund process in the event the injunction 26 ultimately is lifted. See Dkt. 63 at 4, 6; Dkt. 42 at 34-35. Indeed, the process is mandated by 27 PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 5 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 statute. See RCW 46.68.010(1), RCW 4.68.010(2). Moreover, as this Court recognized in the SJ 2 Order, allowing I-976 to go into effect will cause actual and substantial injury to Plaintiffs. Dkt. 3 193 at 9. Accordingly, continuing the date on which the preliminary injunction will be lifted to 4 allow the Washington Supreme Court to decide this issue properly balances the equities and 5 6 prevents irreparable harm to Plaintiffs. Finally, a continuance of the Court’s deadline is warranted in light of the current COVID- 7 8 19 pandemic. Many courts 3 and private parties, including counsel for Plaintiffs and the State, 9 have moved to conducting business remotely at least in part, which has slowed response times. 10 11 Although Plaintiffs will style their Appellate Stay Motion as an emergency motion consistent with RAP 17.4(b) and will request expedited consideration, it is unlikely that they will secure the 12 Washington Supreme Court’s decision on that motion prior to March 27. Accordingly, in the 13 14 15 interests of economy and justice, Plaintiffs respectfully request a continuance of that date until the Washington Supreme Court is able to rule on their motion. VI. 16 CONCLUSION 17 A temporary continuance on lifting the preliminary injunction is warranted to afford the 18 Washington Supreme Court a reasonable opportunity to decide whether I-976 should take effect 19 pending appellate review. Accordingly, this Court should strike its March 27 hearing and 20 continue that suspension until the Washington Supreme Court decides Plaintiffs’ Appellate Stay 21 22 Motion. 23 24 25 26 27 3 See Washington State Supreme Court Order No. 25700-B-602, available at http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/SC%20Order%20Closure %2025700-B-602.pdf; Order No. 25700-B-606, available at http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/Supreme%20Court%20Emergency %20Order%20re%20CV19%20031820.pdf. PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 6 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 3 I certify that this memorandum contains 1,558 words, in compliance with the Local Civil Rules. DATED this 19th day of March, 2020. 4 5 DANIEL T. SATTERBERG King County Prosecuting Attorney PETER S. HOLMES Seattle City Attorney 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 11 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 12 PACIFICA LAW GROUP LLP 13 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, Michael Rogers, City of Burien, and Justin Camarata 6 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 7 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks 1 2 3 CERTIFICATE OF SERVICE I am and at all times hereinafter mentioned was a citizen of the United States, over the age of 21 years and not a party to this action. On the 19th day of March, 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: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 For Plaintiff King County: David J. Hackett, Attorney David J. Eldred, Attorney Erin B. Jackson, Attorney Jenifer C. Merkel, Attorney Rafael Munoz-Cintron, Legal Assistant David.hackett@kingcounty.gov David.eldred@kingcounty.gov Erin.Jackson@kingcounty.gov Jenifer.merkel@kingcounty.gov rmunozcintron@kingcounty.gov 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 Kristin 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 Kristin.jensen@atg.wa.gov Rebecca.DavilaSimmons@atg.wa.gov Morgan.mills@atg.wa.gov Noah.purcell@atg.wa.gov 21 22 23 For Plaintiff City of Seattle: Carolyn U. Boies, Attorney Erica Franklin, Attorney John B. Schochet, Attorney Marisa Johnson, Legal Assistant Carolyn.boies@seattle.gov Erica.franklin@seattle.gov John.schochet@seattle.gov Marisa.Johnson@seattle.gov For Intervenor-Plaintiffs Washington ADAPT, Transit Riders Union and Climate Solutions: Knoll Lowney, Attorney knoll@smithandlowney.com 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. Pidgeon, Attorney spidgeon007@gmail.com For Intervenor-Defendants Timothy Eyman, Michael Fagan and Jack Fagan: Mark D. Kimball, Attorney mkimball@mdklaw.com For Amicus Curiae San Juan County: Randall K. Gaylord randallg@sanjuanco.com 24 25 DATED this 19th day of March, 2020. 26 Sydney Henderson 27 PLAINTIFFS’ EMERGENCY MOTION TO CONTINUE SUSPENSION OF ORDER LIFTING PRELIMINARY INJUNCTION - 8 20284 00002 jc04f107x2 Contact Information for Individual Plaintiffs’ Counsel Found Within Signature Blocks