Judge faults Eyman initiative but doesn’t rule out vote

A judge has refused to block Tim Eyman’s latest anti-tax initiative from the November ballot, despite ruling it contains multiple constitutional defects.

In a written decision Friday afternoon, King County Superior Court Judge Dean Lum said Initiative 1366 “appears to violate” the state constitution’s process for passing constitutional amendments.

However, Lum said those problems did not necessarily outweigh the free-speech rights of initiative supporters to debate the measure. He denied a request for an injunction to pre-empt a public vote.

The state Supreme Court will have the final say, as Lum’s decision was expected to be fast-tracked on appeal.

Eyman and I-1366 co-sponsors Jack and Mike Fagan said in a statement they were “very happy” the judge declined to halt a public vote.

“Opponents’ desperate attempt to prevent the people’s vote on I-1366 failed today and their antidemocratic effort vividly illustrates their lack of trust in the voters,” they said.

Secretary of State Kim Wyman also applauded Lum’s decision to allow a public vote, while adding that she was not taking a position on the merits of the initiative.

But foes of I-1366 found plenty to be happy about in Lum’s ruling, which essentially predicted the measure eventually will be struck down.

“I don’t think the question is ‘whether’ or ‘if’ — I think the question is ‘when,’ from our standpoint. We think that it’s clearly unconstitutional,” said Tony Lee, an anti-poverty activist and one of the lawsuit plaintiffs.

Washington’s constitution cannot be amended by citizen initiative, so I-1366 seeks to pressure state lawmakers to send an amendment to the 2016 ballot.

The initiative would cut the state’s 6.5-cent sales tax to 5.5 cents — slashing state revenues by more than $1.4 billion a year — unless the Legislature submits an amendment to voters reinstating a two-thirds vote requirement for tax increases.

That supermajority rule, which would not apply to tax increases put to public votes, has been repeatedly endorsed in previous initiative votes. But it was struck down as unconstitutional in 2013 by the state Supreme Court.

At a court hearing before Lum on Friday morning, Paul Lawrence, an attorney for the opponents, argued I-1366 goes beyond the scope of powers allowed to citizen initiatives. The framers of Washington’s constitution, he noted, deliberately chose to not allow citizen initiatives to amend the document.

“You have to call this initiative what it is. It is an effort to amend the constitution,” Lawrence said, making it “one of those rare cases” in which blocking a public vote is appropriate.

Rebecca Glasgow, the deputy state solicitor general representing Wyman, argued at the hearing the measure does not directly amend the constitution and would give legislators a choice.

There would be several steps between I-1366’s passage and a possible enactment of a constitutional amendment, she said. Such amendments require a two-thirds vote in each chamber of the Legislature. They must then be ratified by a majority public vote.

Glasgow and Eyman attorney Richard Stephens also argued voters have a free-speech right to debate issues raised by the initiative — even if it is later deemed illegal.

Lum agreed with opponents that I-1366 amounts to an unconstitutional interference with legislators’ prerogative to propose or tweak constitutional amendments before sending them to voters.

“The purpose of the initiative is not to legislate, but to invoke the constitutional amendment process. Sponsors characterize the legislator’s proposal as a ‘choice,’ but there is no choice here,” Lum wrote.

However, Lum cited free-speech issues and a lack of court precedent allowing him to block the initiative before voters have had their say.

“The Supreme Court may clarify this issue prior to the election, but this court cannot,” he said.