Eyman's car-tab measure I-776 violates state constitution

Tuesday, February 11, 2003

Initiative 776 overturned
Eyman's car-tab measure violates state constitution, judge rules

By NEIL MODIE
SEATTLE POST-INTELLIGENCER REPORTER

A judge yesterday declared car-tax-cutting Initiative 776 unconstitutional and unenforceable -- finding, in effect, that sponsor Tim Eyman still hasn't learned how to write an anti-tax initiative without overreaching.

Passed by voters in November to lower vehicle license-tab fees to $30, I-776 was the third tax-limiting initiative sponsored by the Mukilteo watch salesman to be bounced by the courts for embracing more than one subject, a violation of the state constitution.

In a decision almost certain to be appealed to the state Supreme Court, King County Superior Court Judge Mary Yu said the initiative "seeks to achieve two unrelated purposes" -- to set license fees at $30 and to encourage a public revote on Sound Transit's light rail program.

"By tying the proposals together," Yu said. "I-776 forced voters into a Hobson's choice of having to vote for both or against both. . . .The practical effect is that . . . this initiative was able to combine the votes of voters who favored $30 tab fees with the votes of those who oppose Sound Transit's light rail project."

She said I-776 was also unconstitutional in two others ways: by failing in its ballot title to disclose all the subjects of the initiative, and by impairing an existing contract in which King County pledged to bondholders to repay $38.5 million in road improvement bonds with revenue that the initiative eliminated. The county sold the bonds last October.

Violation of the single-subject rule also voided Eyman's Initiative 695, passed by voters in 1999 to replace the vehicle excise tax with a flat $30 fee, and I-722, passed in 2000 to limit property tax growth. Both were declared unconstitutional by the state Supreme Court; the Legislature later lowered car-tab fees, although not to $30.

Passed with 51.5 percent of the statewide vote last fall, I-776's car-tab rollback eliminated a $15 road improvement fee in King and Pierce counties and erased Sound Transit's 0.3 percent motor vehicle excise tax in parts of King, Pierce and Snohomish counties. Snohomish County also had the road fee but repealed it after I-776 passed.

The road surcharge is expected to raise $18.5 million for King County and cities within it and $7.9 million in Pierce County this year.

Yu's decision was a huge relief for officials of Sound Transit, the two counties and other local governments that sued to overturn the initiative. Had it been upheld, it would have erased 20 percent of Sound Transit's revenue as well as money spent on road safety and improvement projects by King and Pierce counties and cities within them.

"We're relieved," Sound Transit Executive Director Joni Earl said after hearing of Yu's decision. Although I-776 wouldn't have affected $350 million in existing bonds sold by Sound Transit in 1998, "it would have impacted us long term" in future bond sales necessary to finance the construction of a light rail line and other agency projects, she said.

Reading aloud portions of a 33-page written decision, Yu seemingly sought to rebut Eyman's frequent complaint that "politicians" thwart the will of the voters by suing to overturn voter-passed initiatives.

"A bedrock principle of American democracy is that our laws must comply with the constitution, whether that law was enacted by the Legislature or directly by the people through an initiative process," she said.

King County Executive Ron Sims, who is chairman of Sound Transit, sounded a similar note after the ruling, saying of Eyman: "I don't know why a person persists in running initiatives that are unconstitutional and then berating the institutions that are protecting the constitution.

"I don't believe that anyone is entitled to violate the Constitution of this country or this state because they feel like it."

Eyman, however, refused to blame his drafting of the initiative for its rejection, saying, "We were incredibly careful (in writing it), knowing we would have this additional scrutiny" by the courts.

Attorneys for Eyman's Permanent Offense committee and the state Attorney General's Office, which is charged with defending voter-approved ballot measures, had argued in court that telling voters that I-695 would ensure a revote on light rail wasn't an impermissible second subject. The reason, they said, was that it was merely "precatory" -- expressing a wish -- and not mandatory.

Yu said, "Voters should not have to guess whether a section is precatory or mandatory when voting for or against an initiative," but rather should be able to assume the initiative language "serves a legitimate and necessary purpose for effectuating the legislation."

In an e-mail to his supporters and news media last night, Eyman scorned the suggestion that the voters might have been confused by the wording, saying: "It is patently absurd. Voters are smart enough to understand what our initiatives do and have consistently approved of our taxpayer-protection initiatives for the past four years."

Yu, however, said in her decision: "The ultimate issue is not about the intelligence of the voter in understanding the initiative. Rather, the crucial question at issue is whether the ballot title and text of the initiative adequately disclosed to the voters what I-776 was really about" as required by the constitution.

She said the title failed to disclose that the initiative encouraged a revote on light rail and repealed the "authority for local citizens to tax themselves for their own roads and/or transit programs."

Tom Ahearne, a Seattle attorney who represented the victorious King and Pierce counties and Tacoma, cemented his standing as Eyman's chief courtroom nightmare. Ahearne also won the lawsuits that knocked out I-695 and I-722.

Ahearne praised Yu's "response to voters who think the voters get what the majority wants" regardless of whether it is constitutional.

"If the majority got what it wanted all the time, Al Gore would be president," he said, for winning the popular vote in 2000.

Jim Pharris, a state assistant attorney general who defended I-695 on behalf of the state, said Yu's ruling is likely to be appealed to the Supreme Court but said his office would have to study the decision before deciding.

Eyman said he was certain of an appeal. He said last week that if the initiative is invalidated, he will run yet another initiative to lower car tabs to $30 as intended by both I-695 and I-776.

Pierce County Executive John Ladenburg welcomed Yu's decision and said he expects the Supreme Court to uphold it later this year.

Yu, in finding that I-776 illegally eliminated revenue pledged by King County to repay bonds, rejected the argument of attorneys defending the initiative that the county sold the bonds after it already knew they might be imperiled by passage of the measure.

Sims reiterated yesterday that the bond sale was the culmination of a program begun in 2000 -- two years before I-776 qualified for the ballot -- to accelerate the construction of badly needed road projects in King County by financing them with bonds instead of waiting for the road-fee revenue to come in.

Regardless, Yu ruled, "there was no violation of the law (by King County). This court declines to interfere with political choices made by the executive branch on the timing of the bond issue."

The almost certain appeal of Yu's ruling might put on ice a separate, I-776-related lawsuit financed by Eyman in Snohomish County Superior Court to bar the state Department of Licensing from continuing to collect the Sound Transit vehicle tax.

I-776'S PURPOSE

The initiative aimed to eliminate a $15 road improvement fee in King, Pierce, Snohomish and Douglas counties. It also was intended to kill Sound Transit's motor-vehicle tax in parts of King, Snohomish and Pierce counties.