supreme court of the state of washington...fee” as “a fee collected by the state of...

NO. 98320-8

SUPREME COURT OF THE STATE OF WASHINGTON

GARFIELD COUNTY TRANSPORTATION AUTHORITY; et al.,

Appellants,

WASHINGTON ADAPT; TRANSIT RIDERS UNION; and CLIMATE

SOLUTIONS,

Intervenor-Plaintiffs,

v.

STATE OF WASHINGTON,

Respondent,

CLINT DIDIER; PERMANENT OFFENSE; TIMOTHY D. EYMAN;

MICHAEL FAGAN; JACK FAGAN; and PIERCE COUNTY,

Intervenor-Defendants.

STATE OF WASHINGTON AND PIERCE COUNTY’S ANSWER

TO APPELLANTS’ EMERGENCY MOTION FOR STAY

PENDING REVIEW

ROBERT W. FERGUSON Attorney General ALAN D. COPSEY, WSBA #23305 ALICIA YOUNG, WSBA #35553 KARL SMITH, WSBA #41988 Deputy Solicitors General P.O. Box 40100 Olympia, WA 98504-0100 (360) 753-6200

LAURYN K. FRAAS, WSBA #53238 Assistant Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 521-5811

Attorneys for Respondent State of Washington

MARY ROBNETT Prosecuting Attorney DANIEL R. HAMILTON, WSBA #14658 FRANK A. CORNELIUS, WSBA #29590 Pierce County Prosecutor/Civil 955 Tacoma Avenue South, Suite 301 Tacoma, WA 98402-2160 (253) 798-7746

Attorneys for Intervenor-Defendant Pierce County

i

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................1

II. STATEMENT OF THE CASE .........................................................2

A. Facts Relevant to Response .......................................................2

1. The ballot title for I-976 .....................................................2

2. Legal context for I-976 .......................................................2

3. Effects of I-976 on existing law .........................................4

4. Impact of I-976 on Washington vehicle owners .................7

B. Procedural History .....................................................................8

III. REASONS WHY THE MOTION FOR A STAY SHOULD

BE DENIED ....................................................................................10

A. Appellants Have Not Demonstrated Debatable Issues Warranting a Stay ....................................................................10

1. Appellants have not presented a debatable issue regarding the subject-in-title requirement ........................12

2. Appellants have not presented a debatable issue regarding the single-subject rule ......................................14

3. It is not debatable that Sections 8 and 9 of I-976 are severable, even if they did violate article I,

section 12 ..........................................................................18

4. Appellants have not presented a debatable issue related to article II, section 37 ..........................................23

5. Appellants have not presented a debatable issue related to local control ......................................................25

ii

B. The Comparative Harms Weigh in Favor of the State and the People and Against a Stay ..................................................27

IV. CONCLUSION ...............................................................................32

iii

TABLE OF AUTHORITIES

Cases

Amalgamated Transit Union Local 587 v. State,

142 Wn.2d 183, 11 P.3d 762 (2000) ................................... 11, 15, 17, 23

American Legion Post No. 149 v. Washington State Dep’t of Health,

164 Wn.2d 570, 192 P.3d 306 (2008) ................................................... 20

Black v. Cent. Puget Sound Reg’l Transit Auth.,

__ Wn.2d __, 457 P.3d 453 (2020) ....................................................... 23

Boeing Co. v. Sierracin Corp.,

43 Wn. App. 288, 716 P.2d 956 (1986) ................................................ 31

Citizens for Responsible Wildlife Management,

149 Wn.2d 622, 71 P.3d 644 (2003) ..................................................... 15

City of Burien v. Kiga,

144 Wn.2d 819, 31 P.3d 659 (2001) ......................................... 15, 17, 18

City of Seattle v. Yes for Seattle,

122 Wn. App. 382, 93 P.3d 176 (2004) ................................................ 22

Coppernoll v. Reed,

155 Wn.2d 290, 119 P.3d 318 (2005) ................................................... 28

Cronin v. Cent. Valley Sch. Dist.,

__Wn. App. __, 456 P.3d 857 (2020) ................................................... 30

Filo Foods, LLC v. City of SeaTac,

183 Wn.2d 770, 357 P.3d 1040 (2015) ................................................. 15

Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake,

150 Wn.2d 791, 83 P.3d 419 (2004) ..................................................... 19

Huff v. Wyman,

184 Wn.2d 643, 361 P.3d 727 (2015) ................................................... 11

iv

Island County v. State,

135 Wn.2d 141, 955 P.2d 377 (1998) ................................................... 11

Kadoranian by Peach v. Bellingham Police Dep’t,

119 Wn.2d 178, 829 P.2d 1061 (1992) ................................................. 19

Kennett v. Levine,

49 Wn.2d 605, 304 P.2d 682 (1956) ..................................................... 31

League of Women Voters v. State,

184 Wn.2d 393, 355 P.3d 1131 (2015) ................................................. 22

Lee v. State,

185 Wn.2d 608, 374 P.3d 157 (2016) ............................................. 17, 23

McGowan v. State,

148 Wn.2d 278, 60 P.3d 67 (2002) ................................................. 12, 21

Ockletree v. Franciscan Health Sys.,

179 Wn.2d 769, 317 P.3d 1009 (2014) ................................................. 19

Pierce County v. State,

150 Wn.2d 422, 78 P.3d 640 (2003) ......................................... 14, 25, 26

Pierce County v. State,

159 Wn.2d 16, 148 P.3d 1002 (2006) ................................................... 12

Purser v. Rahm,

104 Wn.2d 159, 702 P.2d 1196 (1985) ........................................... 10, 27

Shamley v. City of Olympia,

47 Wn.2d 124, 286 P.2d 702 (1955) ..................................................... 31

State v. Redd,

166 Wash. 132, 6 P.2d 619 (1932) ................................................. 25, 26

State v. Wilson,

137 Wash. 125, 241 P. 970 (1925) ....................................................... 26

Wash. Ass’n for Substance Abuse & Violence Prevention v. State,

174 Wn.2d 642, 278 P.3d 632 (2012) ............................................... 2, 16

v

Wash. Fed’n of State Emps. v. State,

127 Wn.2d 544, 901 P.2d 1028 (1995) ................................................. 14

Wash. Toll Bridge Auth. v. State,

49 Wn.2d 520, 304 P.2d 676 (1956) ..................................................... 16

Watson v. City of Seattle,

189 Wn.2d 149, 401 P.3d 1 (2017) ....................................................... 25

Constitutional Provisions

Const. art. I, § 12 ....................................................................... 9, 18, 20, 22

Const. art. I, § 23 ......................................................................................... 9

Const. art. II, § 1(a) ..................................................................................... 1

Const. art. II, § 19 ........................................................................... 9, 12, 14

Const. art. II, § 37 ........................................................................... 9, 23, 24

Const. art. II, § 40 ................................................................................. 3, 13

Const. art. VII, § 5 ...................................................................................... 9

Const. art. XI, § 12 .......................................................................... 9, 25, 26

Cost. art. I, § 19 ......................................................................................... 25

Statutes

RCW 29A.72.050........................................................................................ 2

RCW 29A.72.050(1) ................................................................................. 14

RCW 36.73 ............................................................................................... 24

RCW 36.73.015(6) ...................................................................................... 3

RCW 36.73.020 .......................................................................................... 3

vi

RCW 36.73.040 ........................................................................................ 24

RCW 36.73.040(3)(b) ............................................................................... 24

RCW 36.73.065(1), (4) ............................................................................... 3

RCW 36.73.065(3) .................................................................................... 24

RCW 36.73.065(4) .................................................................................... 24

RCW 36.73.065(5) .................................................................................... 24

RCW 36.73.065(6) .................................................................................... 24

RCW 46.04.671 .......................................................................................... 3

RCW 46.16A.030........................................................................................ 7

RCW 46.16A.040........................................................................................ 7

RCW 46.16A.040(3) ................................................................................... 7

RCW 46.16A.110........................................................................................ 7

RCW 46.16A.110(1) ................................................................................... 7

RCW 46.17 ....................................................................................... 3, 4, 13

RCW 46.17.350 ...................................................................................... 3, 4

RCW 46.17.355 ...................................................................................... 3, 5

RCW 46.17.365 .......................................................................................... 5

RCW 46.68.415 .......................................................................................... 5

RCW 81.104.160 .................................................................................... 4, 6

RCW 82.08.020 .......................................................................................... 5

RCW 82.44.035 .......................................................................................... 6

vii

RCW 82.44.065 .......................................................................................... 5

RCW 82.80.130 .......................................................................................... 5

RCW 82.80.140 ...................................................................... 3, 5, 7, 23, 24

RCW 82.80.140(1) ...................................................................................... 3

Rules

RAP 8.1(b)(3) ..................................................................................... 10, 27

1

I. INTRODUCTION

The right of Washington voters to legislate by initiative is “[t]he first

power reserved by the people” in Washington’s Constitution. Const. art. II,

§ 1(a). When Washington voters approved Initiative 976, they exercised this

constitutional power, sending a clear message that they wanted to reduce

motor vehicle fees and taxes. For four months, the will of the people has

been delayed by a preliminary injunction while the superior court evaluated

I-976’s constitutionality. Now that the superior court has upheld virtually

all of I-976, that injunction is due to expire and I-976 is set to take effect.

This Court should not block it from doing so—the voters’ will should not

be thwarted any longer.

Over the last four months, hundreds of thousands of Washingtonians

have had to pay vehicle taxes and fees higher than they owe under I-976.

Appellants now seek to force such payments by hundreds of thousands more

over the next several months by further delaying I-976’s implementation,

but the money Appellants fear losing ultimately belongs to the People of

Washington. The equities favor the People, not the Appellants. And

although Appellants raise many constitutional theories, they do not

demonstrate that any of them are debatable in light of the strong

presumption that enacted laws are constitutional and the superior court’s

well-reasoned opinion. Appellants’ motion should be denied.

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II. STATEMENT OF THE CASE

A. Facts Relevant to Response

1. The ballot title for I-976

Pursuant to RCW 29A.72.050, the Attorney General’s Office

prepared the ballot title for I-976, consisting of three parts: a statement of

the measure’s subject, a concise description of the measure, and the question

of whether the measure should be enacted into law. Wash. Ass’n for

Substance Abuse & Violence Prevention v. State, 174 Wn.2d 642, 655, 278

P.3d 632 (2012) (WASAVP). The ballot title for I-976 read:

Statement of Subject: Initiative Measure No. 976 concerns motor vehicle taxes and fees.

Concise Description: This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees; limit annual motor-vehicle-license fees to $30, except voter-approved charges; and base vehicle taxes on Kelley Blue Book value.

Should this measure be enacted into law? Yes [ ] No [ ]

Appellants App. 292.

2. Legal context for I-976

Initiative 976 generally repeals, reduces, and removes state and local

authority to impose certain motor vehicle fees and taxes. Before describing

I-976 in detail, it is important to understand that Washington law before

I-976 authorized a number of distinct types of motor vehicle taxes and fees

relevant here. While taxpayers may not have distinguished between these

taxes and fees because they were paid at the same time and some had similar

names, each was legally distinct.

3

First, RCW 46.17 imposed statewide “vehicle license fees.” See

RCW 46.17.350, .355. This type of fee was imposed only by the State, not

by any local government. See RCW 46.04.671 (defining “vehicle license

fee” as “a fee collected by the state of Washington,” not “taxes or fees

collected by the department [of licensing] for any other jurisdiction”).

“Vehicle license fees” are specifically regulated by Washington’s

Constitution, see id., which specifies that “[a]ll fees collected by the State

of Washington as license fees for motor vehicles . . . shall be paid into the

state treasury and placed in a special fund to be used exclusively for

highway purposes.” Const. art. II, § 40 (emphasis added).

Second, RCW 82.80.140 authorized local transportation benefit

districts (TBDs) to impose annual “vehicle fees.” TBDs could impose a

vehicle fee of up to $50 without voter approval, or up to $100 with voter

approval. RCW 36.73.065(1), (4); RCW 82.80.140. Many TBDs imposed

vehicle fees, but only one (Seattle’s) was approved by voters—the rest were

approved by local TBD boards, without a vote of the People. See Resp’ts

App. 40. While these fees were due when renewing a vehicle license, and

were collected by the Department of Licensing on behalf of TBDs, the

statute makes clear that they are distinct from “vehicle license fees under

RCW 46.17[ ].” RCW 82.80.140(1). Indeed, while “vehicle license fees”

under RCW 46.17 constitutionally may be used only for highway purposes,

Const. art. II, § 40, “vehicle fees” that TBDs collect may be used for non-

highway purposes. See, e.g., RCW 36.73.020 and RCW 36.73.015(6)

4

(together allowing TBDs to fund “high capacity transportation, public

transportation, and other transportation projects and programs”).

Finally, RCW 81.104.160 allowed regional transit authorities

(namely, Sound Transit) to impose a motor vehicle excise tax (MVET).

While this charge was also collected by the Department of Licensing at

license renewal, it differed in important ways from the “vehicle license

fees” that RCW 46.17 addresses. Most notably, this charge was a tax, not a

fee, and varied based on vehicle value.

I-976 altered all of these vehicle taxes and fees, as well as several

others.

3. Effects of I-976 on existing law

Sections 2 through 4 of the Initiative amend RCW 46.17 and address

the “motor vehicle license fees” that chapter imposes. Section 2 limits

“[s]tate and local motor vehicle license fees” to “$30 per year.” I-976, § 2.

Section 2 defines “state and local motor vehicle license fees” as “the general

license tab fees paid annually for licensing motor vehicles,” but not

including “charges approved by voters after the effective date of this

section.” Id.

Section 3 amends RCW 46.17.350, which sets forth “vehicle license

fee by vehicle type.” Id. § 3(1). This section reduces the snowmobile license

fee and commercial trailer fee to $30. Id. It further states that the “vehicle

license fee” required under this subsection is in addition to other filing fees

and any other fee or tax required by law. Id. § 3(2).

5

Section 4 amends RCW 46.17.355, which sets forth “license fee by

weight.” Id. § 4(1)(b). This section, which generally applies to trucks,

reduces license fees to $30 per year for vehicles under 10,000 pounds. Id.

§§ 4(1)(b), 4(5). This section further states that “license fees” and “the

freight project fee” in this section are in addition to other filing fees and any

other fee or tax required by law. Id. § 4(4).

Section 5 reduces the electric vehicle fee from $100 to $30 and

eliminates an additional $50 electric vehicle fee. Id. §§ 5(1), 5(4)(a).

Section 6 repeals several statutes, including RCW 46.17.365, which

imposed a passenger weight fee of between $25 and $72 per vehicle;

RCW 82.80.140, which authorized TBDs to impose annual vehicle fees of

up to $100 per vehicle; and RCW 82.80.130, which authorized imposition

of a local MVET to support passenger-only ferries. Id. § 6. Section 6 also

repeals RCW 46.68.415, which addressed how the passenger weight fee

would be used.

Section 7 removes the provision in RCW 82.08.020 that imposed an

additional 0.3 percent sales tax for each retail sale of a motor vehicle. Id.

§ 7(3).

Section 8 adds a new section to the motor vehicle excise tax chapter

to require that any motor vehicle excise tax use a vehicle’s “base model

Kelley Blue book value.”

Section 9 amends RCW 82.44.065 to incorporate the Kelley Blue

book method for valuing a vehicle when persons paying state or locally

imposed taxes appeal the valuation to the Department of Licensing.

6

Section 10 amends RCW 81.104.140 to eliminate the special MVET

that a regional transit authority is allowed to impose under

RCW 81.104.160. Pursuant to section 16, section 10 takes effect only after

“the regional transit authority complies with section 12 of this act and

retires, defeases, or refinances its outstanding bonds.” Id. § 16(1).

Section 11 repeals RCW 82.44.035 and RCW 81.104.160. Pursuant

to section 16, section 11 takes effect only after “the regional transit authority

complies with section 12 of this act and retires, defeases, or refinances its

outstanding bonds.” Id. § 16(1).

Section 12 states that “[i]n order to effectuate the policies, purposes,

and intent of this act to ensure that the motor vehicle excise taxes repealed

by this act are no longer collected, an authority that imposes a motor vehicle

excise tax under RCW 81.104.160 must fully retire, defease, or refinance

any outstanding bonds” if “[a]ny revenue collected prior to the effective

date of this section from the motor vehicle excise tax imposed under

RCW 81.104.160 has been pledged to such bonds” and “[t]he bonds, by

virtue of the terms of the bond contract, covenants, or similar terms, may be

retired or defeased early or refinanced.”

Section 13 amends RCW 81.104.160 to reduce the authority for

voter-approved excise taxes for regional transit authorities from 0.8 percent

to 0.2 percent on the value of every motor vehicle owned by a resident of

the taxing district. Pursuant to section 16, section 13 takes effect on April

1, 2020, if sections 10 and 11 have not taken effect by March 31, 2020. Id.

§ 16(2).

7

Section 14 requires that the act be liberally construed to effectuate

its intent, policies, and purposes.

Section 15 provides a severability clause.

Section 16 sets forth the effective dates for sections 10, 11, and 13.

Section 17 provides a title for the Act.

4. Impact of I-976 on Washington vehicle owners

The repeal, reduction, and removal of motor vehicle taxes and fees

will result in substantial savings to Washington vehicle owners. All vehicles

in Washington, unless exempt, must be registered yearly with the

Department of Licensing. RCW 46.16A.030, .040, .110. At registration,

owners must pay all applicable fees and taxes. RCW 46.16A.040(3),

.110(1). This currently includes TBD fees authorized under

RCW 82.80.140.

Once I-976 is implemented, Washington vehicle owners will no

longer pay numerous vehicle taxes and fees, including the passenger weight

fee, the motor home weight fee, and TBD fees. I-976, § 6. In addition, all

the following fees are lowered to $30: vehicle license fee by weight for

vehicles under 10,000 pounds, id. § 4; electric vehicle fee, id. § 5;

snowmobile registration fee, id. § 3; and commercial trailer fee, id. § 3. And

Washington residents who purchase cars will no longer have to pay the

additional 0.3 percent sales tax on the car’s price. Id. § 7.

I-976 would save Washington vehicle owners over $300 million

annually in state motor vehicle taxes and fees. Resp’ts App. 46. Vehicle

owners in the 62 municipalities across the state that impose TBD vehicle

8

fees—which range from $20 to $80 per vehicle—will save an additional

$58 million annually. Resp’ts App. 47.

As the superior court noted, these savings are particularly

meaningful to Washington residents now during the COVID-19 crisis, as

“[a]lmost overnight, thousands of Washington residents have lost jobs due

to the public health crisis” and “[o]ngoing, sizeable job losses are predicted

for the near future.” Resp’ts App. 131. Because “[t]he difference between

what is currently owed versus what one would owe if I-976 were to be

implemented might be substantial in some instances, perhaps in the

hundreds of dollars,” being forced to continue to pay the motor vehicle taxes

and fees eliminated by I-976 “could plunge [some Washington residents]

into dire straits or force them into harsh dilemmas.” Id.

B. Procedural History

Shortly after Washington voters approved I-976, Plaintiffs

(Appellants in this Court) filed a lawsuit challenging I-976 in King County

Superior Court, and they moved for preliminary injunction on November

18, 2019. The superior court held a hearing and issued an Order granting

Plaintiffs’ motion, identifying a single legal issue on which it concluded

Plaintiffs were likely to prevail. Appellants’ App. 526-33. The superior

court stayed the effective date of I-976 pending further order of the court

and ordered the State to “continue to collect all fees, taxes, and other charges

that would be subject to or impacted by I-976 were it not stayed . . . .”

Appellants’ App. 532. After this Court declined to stay the preliminary

injunction, the parties proceeded to merits briefing.

9

Extensive briefing was filed in the superior court, including four

cross-motions for summary judgment. The superior court held a full-day

hearing on the parties’ cross-motions for summary judgment. On February

12, 2020, the superior court entered an order substantially denying

Plaintiffs’ and Intervenor-Plaintiffs’ claims. It dismissed with prejudice

claims alleging violation of (i) article II, section 19 of the Washington

Constitution (single-subject rule); (ii) article II, section 19 (subject-in-title

rule); (iii) article II, section 37; (iv) article XI, section 12; (v) article I,

section 19; (vi) article VII, section 5; and (vii) separation-of-powers.

Appellants’ App. 1362. The superior court withheld summary judgment on

two claims—article I, section 12; and article I, section 23 as to the City of

Burien—pending discovery. Id. Because the superior court’s Order did not

dispose of all claims, the Court left its preliminary injunction in place. Id.

Appellants sought reconsideration of their article II, section 37 claim

and their article II, section 19 single subject claim. Appellants’ App. 1371,

1375-78. The State and Pierce County requested reconsideration of the

superior court’s ruling regarding article I, section 12, and asked the court to

lift the preliminary injunction. Appellants’ App. 1398-1407.

On March 12, 2020, the superior court denied Appellants’ motion

for reconsideration. Appellants’ App. 1418-19. The Court granted the State

and Pierce County’s motion for reconsideration in part, ruling that sections

8 and 9 of I-976 (related to Kelley Blue Book) violated article I, section 12

but finding those sections to be severable from I-976. Appellants’ App.

1421. Having disposed of all of Appellants’ claims except a contract

10

impairment claim related only to the City of Burien, the superior court

vacated its preliminary injunction as to all parties other than Burien, and as

to all other persons and political subdivisions of state and local government,

except as to the severed sections 8 and 9 of I-976. Appellants’ App. 1421-

22. The Court suspended its Order vacating and modifying the injunction

until March 27, 2020, to allow Appellants to move to reinstate the injunction

or seek relief from an appellate court. Appellants’ App. 1423.

One week later, on March 19, 2020, Appellants filed a notice of

discretionary appeal in this Court. Appellants’ App. 1424-27. Five days

after that, on March 24, 2020, Appellants filed the “emergency motion”

with this Court seeking to block implementation of I-976 pending review

on the merits.

This response is filed jointly by the State and Pierce County

(referred to herein as “Respondents.”)

III. REASONS WHY THE MOTION FOR A STAY SHOULD BE DENIED

A. Appellants Have Not Demonstrated Debatable Issues Warranting a Stay

Appellants bear the burden to demonstrate that the issues they

identify are debatable. RAP 8.1(b)(3); Purser v. Rahm, 104 Wn.2d 159, 177,

702 P.2d 1196 (1985). They have not done so. Before addressing their

specific constitutional claims, a few overarching points are key.

First, Appellants argue that the issues must be debatable because the

superior court “flipped” its reasoning between its preliminary injunction

ruling in November 2019, and its summary judgment ruling in February

11

2020. Mot. at 16. That argument assumes a false equivalence between the

two proceedings. The standard for assessing constitutionality on the merits

is different than the standard for entering a preliminary injunction. At

summary judgment, Appellants must demonstrate unconstitutionality

beyond a reasonable doubt, the same standard they will face in this Court.

This differs markedly from simply showing a likelihood of success.

Compare Huff v. Wyman, 184 Wn.2d 643, 651, 361 P.3d 727 (2015)

(standard for preliminary injunction), with Amalgamated Transit Union

Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000) (ATU)

(initiatives entitled to presumption of constitutionality), and Island County

v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998) (challenger must

demonstrate unconstitutionality beyond reasonable doubt). There is no case

standing for the proposition that a preliminary determination as to the

likelihood of success binds a court when it finally reaches the merits.

Second, Appellants contend that the State cannot contest

debatability now because it argued that the superior court’s holding as to

the subject-in-title issue was debatable when requesting a stay of the

preliminary injunction in December 2019. Mot. at 16. But the State’s

argument then that the superior court’s prior ruling was at least debatable is

entirely consistent with Respondents’ position now. If a ruling on an issue

is incorrect, it is perfectly fair to say that it is at least debatable; a correct

12

ruling on the same issue may not be debatable.1 Here, the superior court’s

preliminary ruling on the subject-in-title issue was incorrect; its ruling now

is correct, and therefore beyond debate.

Third, Appellants question the superior court’s decision, following

full briefing, to sever two sections of I-976, without acknowledging that the

decision is completely consistent with settled law regarding severability.

Mot. at 16. See McGowan v. State, 148 Wn.2d 278, 294-95, 60 P.3d 67

(2002) (recognizing appropriate use of severability in constitutional

challenges to initiatives); Pierce County v. State, 159 Wn.2d 16, 51, 148

P.3d 1002 (2006) (invalidating and severing only a single section of I-776).

Finally, they simply recite some of the unsuccessful arguments they

made to the superior court. Debatability must mean something more than

being able to come up with an argument. If disagreement between parties

were proof of debatability, then every issue on which the parties differ is

debatable by definition, and the standard becomes meaningless. If there was

no disagreement, there would be no case or controversy.

1. Appellants have not presented a debatable issue regarding the subject-in-title requirement

Since the beginning, Appellants’ arguments regarding article II,

section 19’s subject-in-title requirement have been based on misreading the

title. Respondents explained repeatedly how there are two distinct clauses

in I-976’s title, separated by a semicolon, and how the references to a $30

1 For example, if a person said: “Seattle is south of Olympia,” that would be

incorrect, and thus, at least debatable; if a person said “Seattle is north of Olympia,” that

would be correct, and not debatable.

13

limit and voter-approved charges are found in and apply only to the second

clause. Appellants’ App. 415-17, 598-600, 1287-89. The first clause

informs voters that the measure would broadly “repeal, reduce, or remove

authority to impose certain vehicle taxes and fees.” The second clause

explains that one specific type of fee, “annual motor-vehicle-license fees,”

would be limited “to $30, except voter-approved charges.” Respondents

explained how the second clause refers only to “motor-vehicle-license

fees,” a subset of the “vehicle taxes and fees” referenced in the first clause—

and a subset that is constitutionally distinct under article II, section 40 of

the Constitution. Appellants’ App. 417 n.3, 1288. Respondents explained

why the definition of “state and local motor vehicle license fees” in I-976,

section 2(2) excludes taxes like MVETs and local TBD fees used for local

transit purposes, which cannot constitutionally be understood to be “vehicle

license fees.” Appellants’ App. 417 n.3, 600, 1288. And Respondents

explained how the ancillary fees charged under RCW 46.17, which make

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

Appellants’ App. 599-600, 1288-89.

I-976’s ballot title accurately informs voters as to the general

impacts of the measure (to “repeal, reduce, or remove authority to impose

certain vehicle taxes and fees”) and, more specifically, that one type of fee

(“motor-vehicle-license fees”) would be limited to $30, absent voter-

approved charges regarding that fee. This is neither deceitful nor

misleading.

14

Appellants also complained unsuccessfully that the ballot title’s

concise statement—which is limited to 30 words no matter an initiative’s

length or complexity, RCW 29A.72.050(1)—should have referenced

additional language in the initiative. Mot. at 18. Article II, section 19 does

not require the detail Appellants desire. “To be constitutionally adequate,

‘the title need not be an index to the contents, nor must it provide details of

the measure.’ ” Pierce County v. State, 150 Wn.2d 422, 436, 78 P.3d 640

(2003) (Pierce County I) (quoting ATU, 142 Wn.2d at 217). Rather, a title

is sufficient “ ‘if it gives notice that would lead to an inquiry into the body

of the act, or indicate to an inquiring mind the scope and purpose of the

law.’ ” Id. (quoting YMCA v. State, 62 Wn.2d 504, 506, 383 P.2d 497

(1963)). The superior court correctly concluded that this ballot title met that

constitutional standard.

Respondents refuted every argument Appellants raised in their

subject-in-title challenge, and did so to the superior court’s satisfaction.

Appellants’ App. 1344-50. The superior court rejected Appellants’

reconstruction of the title and properly construed the language in favor of

the Initiative’s constitutionality. See Pierce County I, 150 Wn.2d at 436;

Wash. Fed’n of State Emps. v. State, 127 Wn.2d 544, 556, 901 P.2d 1028

(1995).

2. Appellants have not presented a debatable issue regarding the single-subject rule

The single subject rule allows an initiative to make multiple changes

in the law that relate to one overarching subject and to each other. That is

15

precisely what I-976 does. Having conceded that the title of I-976 is general,

Appellants suggest two reasons why they believe I-976 violates the single-

subject rule. Neither challenge raises debatable issues warranting a stay.

First, Appellants argue that I-976 is invalid because it combines a

long-term “continuing” subject with one that is more short-term. Mot. at 21.

But this is not the test for whether an initiative violates the single-subject

requirement. Where, as here, the title of an initiative is general, the single-

subject rule is violated only if the general subject and incidental subjects of

the initiative lack “rational unity.” ATU, 142 Wn.2d at 209. “Rational unity

exists when the matters within the body of the initiative are germane to the

general title and to one another.” Filo Foods, LLC v. City of SeaTac, 183

Wn.2d 770, 782-83, 357 P.3d 1040 (2015). The court is to use “great

liberality” in making this determination. Id. at 782. There is no violation

just because a “general subject contains several incidental subjects or

subdivisions.” ATU, 142 Wn.2d at 207.

Moreover, I-976 is not like the laws in the cases Appellants cite.

Indeed, this Court already distinguished those cases in Citizens for

Responsible Wildlife Management, 149 Wn.2d 622, 637-38, 71 P.3d 644

(2003), explaining that each of the invalidated laws contained “dual

subjects” having no relation to one another—one a “broad, long term and

continuing” provision, and the other a more specific impact—with neither

provision necessary to implement the other. See id. at 637 (distinguishing

ATU, 142 Wn.2d 183; City of Burien v. Kiga, 144 Wn.2d 819, 31 P.3d 659

(2001); and Wash. Toll Bridge Auth. v. State, 49 Wn.2d 520, 304 P.2d 676

16

(1956)).2 In contrast to the cases Appellants cite, all the provisions in I-976

either directly address motor vehicle taxes and fees—the general subject of

the Initiative—or are rationally necessary to implement provisions that

directly address motor vehicle taxes and fees. All of I-976’s sections are

thus germane to the general subject and to one another. The Initiative

exhibits “rational unity” and does not contain “dual subjects.”

Second, Appellants argue that “I-976’s provision limiting car tab

fees to $30 except ‘charges approved by voters’ constitutes an

unconstitutional second subject.” Mot. at 22. In so arguing, Appellants

continue to misrepresent and misconstrue Respondents’ position in this

litigation. Respondents have not argued that I-976 established any specific

mechanism for future increases in state vehicle license fees, nor foreclosed

the Legislature from enacting any future laws. What Respondents have

argued, both in its briefing and at the summary judgment hearing, is that

I-976 does not preclude voters from approving charges in the future, either

through another citizens’ initiative or in response to a change in the law that

the Legislature enacts.

Recognizing that voters (or the Legislature) retain the authority to

approve increases in vehicle taxes and fees is not an argument that I-976

“established” or “precluded” any “mechanism” for future increases in state

vehicle license fees. It is simply an acknowledgment of reality—the people

2 The Court also distinguished those cases in the WASAVP decision, where it

found a “closer nexus” among I-1183’s provisions “affecting spirits and wine” that did

not “combine a specific impact of a law with a general measure for the future.” 174

Wn.2d at 658-59.

17

via initiative and the Legislature have plenary power to amend or repeal

previously enacted laws, and the Legislature has plenary authority to adopt

new mechanisms allowing local voter approval of taxes and fees.3 I-976’s

implicit recognition of that reality does not constitute a separate subject.

The State’s argument presents no “flaw” for the Court to reconcile.

Because I-976 did not establish any particular mechanism for future

increases in state vehicle license fees, there is no second subject to analyze.

Appellants’ attempt to invoke ATU, City of Burien, and Lee v. State, 185

Wn.2d 608, 374 P.3d 157 (2016), in this context therefore continues to be

misplaced.

ATU addressed a challenge to I-695. I-695 combined a reduction in

license tab fees to $30 with a requirement of voter approval for any future

increase in taxes or fees imposed by the state or any local government. ATU,

142 Wn.2d at 193. Similarly, I-1366, which was challenged in Lee, offered

voters either a one percent reduction in the sales tax or a proposed

“constitutional amendment requiring a supermajority vote or voter approval

to raise all taxes and legislative approval to increase any fees.” Lee, 185

Wn.2d at 622. Thus, both measures combined a one-time change to a

particular tax with a permanent change in how all other taxes and fees could

be adopted. I-976 does nothing of the kind.

3 See Washington State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 290,

301-02, 174 P.3d 1142 (2007) (each Legislature has plenary power under the Washington

Constitution that cannot be constrained by the enactment of a prior Legislature).

18

The problem in City of Burien was similarly that I-722 contained

two subjects, entirely unrelated to one other. One section would nullify and

refund a wide range of 1999 tax and fee increases, implicating “utility

charges, hospital charges, housing authority rents, city moorage rates, park

district admissions, port district cold storage charges, and numerous other

‘monetary charges.’” City of Burien, 144 Wn.2d at 827. Five sections would

change the method of assessing property taxes. Id. The Court held that

“[t]he nullification and onetime refund of various 1999 tax increases and

monetary charges is unnecessary and entirely unrelated to permanent,

systemic changes in property tax assessments.” Id. Here, by contrast, all of

I-976’s policy changes are clearly related to motor vehicle taxes and fees.

Appellants have failed to demonstrate a debatable issue.

3. It is not debatable that Sections 8 and 9 of I-976 are severable, even if they did violate article I, section 12

Appellants next contend that, when the superior court ruled that

sections 8 and 9 of I-976 violated article I section 12, it erred in severing

them rather than declaring the entire measure invalid. Appellants’

arguments do not present debatable issues because: (1) as the State will

demonstrate in its cross-appeal, Appellants failed to establish that those

sections violate article I, section 12, rendering the question of severability

moot, and (2) even if sections 8 and 9 did violate article I, section 12, there

is no reasonable debate that the superior court properly severed them.

Briefly, with respect to the merits, sections 8 and 9 do not violate

article I, section 12 of the Washington Constitution—the “Privileges or

19

Immunities Clause”—by “requir[ing] the State to enter an exclusive

contract or other partnership agreement with [Kelley Blue Book] and its

owner for use of the KBB product.” See Mot. at 19. Even if Appellants have

standing to make this claim, which they do not,4 and even if, facially, section

8 actually required the State to contract with the corporation that owns the

Kelley Blue Book (KBB), which it does not,5 such an arrangement would

still not violate the Privileges or Immunities Clause. A law violates the

Privileges or Immunities Clause if it (1) involves a privilege or immunity,

and (2) the legislative body lacked a “reasonable ground” for granting the

privilege or immunity. Ockletree v. Franciscan Health Sys., 179 Wn.2d

769, 776, 317 P.3d 1009 (2014) (plurality opinion). Neither prong is

satisfied here.

With respect to the first prong, “corporate favoritism” is not itself a

privilege or immunity, as Appellants seem to argue. A “privilege or

immunity” under the Washington Constitution refers only “to those

fundamental rights which belong to the citizens of [Washington] by reason

of such citizenship.” Grant County Fire Prot. Dist. No. 5 v. City of Moses

Lake, 150 Wn.2d 791, 812-13, 83 P.3d 419 (2004) (citing State v. Vance,

29 Wash. 435, 458, 70 P. 34 (1902)); accord Ockletree, 179 Wn.2d at 778.

In American Legion Post No. 149 v. Washington State Dep’t of Health, 164

4 See Kadoranian by Peach v. Bellingham Police Dep’t, 119 Wn.2d 178, 191, 829

P.2d 1061 (1992) (“[A] litigant does not have standing to challenge a statute on

constitutional grounds unless the litigant is harmed by the particular feature of the statute

which is claimed to be unconstitutional.”); see also Resp’ts App. 126-27.

5 See Appellants’ App. 1303-04, 1399-1406; Resp’ts App. 124.

20

Wn.2d 570, 609, 192 P.3d 306 (2008), the Court rejected the notion that the

Privileges or Immunities Clause is violated any time a statute treats

similarly situated businesses differently. Observing that a “ ‘privilege’

normally relates to an exemption from a regulatory law that has the effect

of benefiting certain businesses at the expense of others,” id. at 607, the

Court held that the law at issue did not involve a privilege for purposes of

article I, section 12 because the law did not prevent any entity from

engaging in business. The same is true here, even under Appellants’

speculations as to the future. There is thus no “privilege” implicated at all

here, so there can be no violation of the privilege and immunities clause of

article I, section 12. Appellants have not demonstrated a violation of that

constitutional provision beyond a reasonable doubt.

Even if there were a privilege implicated here, Appellants would

still need to prove beyond a reasonable doubt that the People lacked a

“reasonable ground” for choosing Kelley Blue Book valuation as the

applicable method for certain tax assessments, a showing they have failed

to make. It is perfectly reasonable for the People to choose a uniform

valuation method that is widely known by the public and widely accepted

for purposes of private transactions.

No matter the merits of the claim, there is no reasonable debate that,

if sections 8 and 9 are invalid, they are severable from the rest of I-976. An

initiative “is not unconstitutional in its entirety unless invalid provisions are

unseverable and it cannot reasonably be believed that the [People] would

have passed one without the other, or unless elimination of the invalid part

21

would render the remaining part useless to accomplish the legislative

purposes.” McGowan, 148 Wn.2d at 294-95. A severability clause indicates

the voters’ intent to pass the remaining sections even if others are found

invalid. See id. Here, sections 8 and 9 are independent from the remainder

of I-976, and their elimination would not render the rest of the measure

useless to accomplish the People’s purposes. Moreover, by including a

severability clause, the People indicated their clear intent to pass the rest of

the Initiative even if certain provisions were later invalidated.6

Only sections 8 and 9 of I-976 refer to the Kelley Blue Book.

Sections 8 and 9 are also independent of the remainder of I-976. Severing

those sections does not render the remaining parts of I-976 “useless to

accomplish” I-976’s purpose. Rather, the main thrust of I-976, reducing or

limiting certain taxes and fees, is accomplished notwithstanding the

invalidation of sections 8 and 9.

Appellants argue that sections 8 and 9 cannot be severed because the

Kelley Blue Book valuation method was included in I-976’s ballot title.

Mot. at 19-20. But, by including a severability clause, the People also

expressly indicated their intent to pass the remaining sections even if certain

sections were deemed invalid. See McGowan, 148 Wn.2d at 294-95. This

6 Additionally, sections 8 and 9 of I-976 affect vehicle valuation only for purposes

of an MVET, and the only current MVET is imposed by Sound Transit in King, Pierce,

and Snohomish counties. Thus, only voters in those counties would benefit directly from

this change in valuation methodology, yet I-976 passed overwhelmingly in many other

counties. Voters clearly would have approved the measure even if those sections hadn’t

been included, because voters overwhelmingly passed the measure even where those

sections wouldn’t affect them.

22

case is not like the legislation at issue in League of Women Voters v. State,

184 Wn.2d 393, 412, 355 P.3d 1131 (2015), where the Court concluded that

the invalid portions were “so intertwined with the remainder of the Act and

so fundamental to the Act’s efficacy” that they were not severable despite

the existence of a severability clause. Here, as the superior court correctly

noted, sections 8 and 9 are independent from the rest of I-976, and are easily

severable.

Additionally, the logical consequence of Appellants’ argument

against severability is that the Attorney General’s Office, when crafting an

initiative’s ballot title, should prejudge the constitutionality of each of the

initiative’s provisions and omit from the ballot title mention of any

provision it believes may risk being invalidated, in order to prevent risking

invalidation of the entire initiative. This is contrary to the presumption of

constitutionality, the neutrality the Attorney General must maintain in

drafting ballot titles, and the purpose of severability.

At issue in City of Seattle v. Yes for Seattle, 122 Wn. App. 382, 93

P.3d 176 (2004) (cited by Appellants), was a pre-election challenge to

whether a local initiative exceeded the scope of the local initiative power.

Id. at 386-93. The issue was whether the initiative could go on the ballot at

all. Id. No article I, section 12 claim was at issue, and the Court of Appeals’

reference to the ballot title in that case has no application here. Moreover,

because it is the language of the initiative that creates operative law, not the

ballot title, an article I, section 12 claim necessarily addresses only the

language of the initiative, not the ballot title.

23

Appellants present no debatable issues that sections 8 and 9, if

unconstitutional, were properly severed.

4. Appellants have not presented a debatable issue related to article II, section 37

I-976 complies with the Washington Constitution’s requirement that

a law must “set forth at full length” an “act revised or the section amended.”

Const. art. II, § 37. Appellants have not demonstrated that this is a debatable

issue; this is particularly true in light of their burden to demonstrate that

I-976 is unconstitutional “beyond a reasonable doubt.” Lee, 185 Wn.2d at

619. The test for compliance with article II, section 37 is well-established.

First, the Court addresses whether the challenged provision “is a ‘complete

act,’ such that the rights or duties under the statute can be understood

without referring to another statute.” Black v. Cent. Puget Sound Reg’l

Transit Auth., __ Wn.2d __, 457 P.3d 453, 458 (2020) (quoting El Centro

de la Raza v. State, 192 Wn.2d 103, 129, 428 P.3d 1143 (2018) (plurality

opinion)); see also ATU, 142 Wn.2d at 255 (holding that I-695 was

complete as to a specific subject). Second, the Court addresses “whether ‘a

straightforward determination of the scope of rights or duties under the

existing statutes [would] be rendered erroneous by the new enactment.”

ATU, 142 Wn.2d at 246. Each challenged provision of I-976 is complete,

and nothing in I-976 renders erroneous a straightforward determination of

the right or duties under existing statutes.

The challenged provision of I-976—its repeal of RCW 82.80.140—

is complete. In their emergency motion for a stay pending review,

24

Appellants provide no meaningful argument to the contrary. Nor could they.

I-976 repeals the statutory authority for TBDs to “fix and impose an annual

vehicle fee.” See I-976, § 6 (repealing RCW 82.80.140). It thereby makes

clear the rights and duties of TBDs with respect to imposing an annual

vehicle fee. No reference to any other statute is required.

I-976’s repeal of RCW 82.80.140 also does not render a

straightforward determination of any other provision erroneous. Appellants’

argument focuses on RCW 36.73. Mot. at 26. No provision of RCW 36.73

is rendered erroneous. RCW 36.73.040 summarizes the authority that other

statutes grant to TBDs. One of those entries concerns imposition of “[a]

vehicle fee in accordance with RCW 82.80.140.” RCW 36.73.040(3)(b)

(emphasis added). Because of the “in accordance with” language, a

determination of a TBD’s authority to impose a vehicle fee is

straightforward: There is no such authority in light of the repeal of

RCW 82.80.140. The same analysis applies to each reference to a “vehicle

fee” in RCW 36.73.065(3), (4), and (5), each of which refer, directly or

indirectly, to a “vehicle fee authorized in RCW 82.80.140.” (Emphasis

added). The reference to a “vehicle fee” in RCW 36.73.065(6) also remains

subject to a straightforward determination. It speaks to the process for voter

approval of certain TBD vehicle fees; it does not purport to authorize such

fees. That process is not rendered erroneous; it just cannot be employed

unless and until such fees are again authorized.

In sum, there is not a debatable issue regarding article II, section 37.

25

5. Appellants have not presented a debatable issue related to local control

Appellants fall well short of demonstrating a debatable issue about

constitutional provisions related to local control. The superior court

properly ruled that Appellants did not prove beyond a reasonable doubt that

article XI, section 12, the “Home Rule” provision, prevented the State from

rescinding taxing authority previously granted to municipalities. It is also

settled law that article I, section 19, which guarantees “free and equal”

elections, does not guarantee that all issues may be decided by a local

election. Nor does article I, section 19 immunize a measure adopted in a

local election from being affected by future legislation. This Court should

also decline Appellants’ attempt to incorporate an additional 20 pages of

briefing into their already-overlength motion.

There is no merit to Appellants’ article XI, section 12 argument. It

is long-established that local governments have no inherent authority to tax;

the State must grant the power to tax. See, e.g., Watson v. City of Seattle,

189 Wn.2d 149, 166, 401 P.3d 1 (2017). It is also firmly established that the

State may rescind the authority of municipalities to tax. Pierce County I,

150 Wn.2d at 440. Appellants failed to prove that the People, in adopting

I-976, invalidly exercised this recognized power to rescind TBDs’ authority

to impose certain taxes. I-976, § 6. Appellants’ only authority for the

argument that there was something improper about this is their misreading

of State v. Redd, 166 Wash. 132, 6 P.2d 619 (1932). Mot. at 27. The issue

of the State’s authority to rescind taxing authority previously granted to a

municipality was not before the Court in Redd. Instead, Redd simply holds

26

that because the State may not impose taxes for municipal purposes, the

state tax commission could not, on its own motion, reassess taxes imposed

for municipal purposes. Id. at 137. Article XI, section 12’s prohibition on

the State imposing taxes for municipal purposes is not at issue here, and

Redd therefore is not relevant. The superior court followed controlling

authority in Pierce County I, which holds that the State may rescind taxing

authority previously granted. Appellants have not shown that there is any

debatable issue under article XI, section 12.

Appellants’ article I, section 19 argument similarly lacks merit and

does not rise to the level of a debatable issue. Article I, section 19 addresses

how elections are conducted—when there is an election, it must be “free

and equal.” That provision does not, however, guarantee that an election

result will stand in perpetuity or for any other period. Nor does it “mean that

voters may go to the polls at any time and vote on any question they see fit.”

State v. Wilson, 137 Wash. 125, 132, 241 P. 970 (1925). Appellants contend

that where a local government holds an election on a given topic, article I,

section 19 prohibits the State from legislating in a contrary manner. This

would lead to plainly absurd results. For example, under Appellants’ theory,

if one city’s voters passed an ordinance allowing residents to buy firearms

without background checks, voters statewide would forever be prohibited

from passing an initiative requiring such background checks. That cannot

be the law. This is not a debatable issue.

27

B. The Comparative Harms Weigh in Favor of the State and the People and Against a Stay

The equities weigh against a stay of I-976.7 The equities include the

comparative injuries to the parties, RAP 8.1(b)(3), and whether a stay is

“necessary to preserve for the movant the fruits of a successful appeal.”

Purser, 104 Wn.2d at 177. Even where a stay is necessary to preserve the

fruits of the appeal, that is not sufficient to justify a stay; the Court must still

“consider[ ] the equities of the situation.” Id. The equities favor immediate

implementation of I-976.

In their motion, Appellants principally focus on what would be a

temporary inability to collect tax revenue. See Mot. 29-30. That would be a

harm only if this Court ultimately reverses the superior court. Appellants

further argue that this potential harm substantially favors them due to the

“economic shock that Appellants and other municipalities throughout

Washington are experiencing as a result of the COVID-19 emergency,” id.

at 30, and because the State has a “viable” (albeit costly) refund process in

the event the superior court’s decision is reversed and I-976 is ultimately

upheld, id. at 31-32. But these arguments miss the mark in several crucial

respects.

First, the significance of Appellants’ monetary losses pales in

comparison to the significant harm to the People’s confidence in the

democratic process if they are forced to continue paying the motor vehicle

taxes and fees repealed by I-976 now that the superior court has determined

7 In addition to considering whether a movant has presented debatable issues,

RAP 8.1(b)(3) requires consideration of the equities.

28

that the voter-passed initiative is constitutional. After months of vigorous

debate, the majority of Washington voters affirmatively chose to repeal the

motor vehicle taxes and fees that Appellants want to continue collecting

through I-976. The results of that election already have been stayed for

months while the superior court considered hundreds of pages of briefing

and dozens of declarations, held a full-day hearing, and considered

arguments on motions for reconsideration. Now that I-976 has been

carefully analyzed by the superior court and found to be constitutional,

Appellants’ continued attempts to stifle the will of the voters should be

rejected. The initiative is “[t]he first power reserved by the people,” and

“must be vigilantly protected by our courts.” Coppernoll v. Reed, 155

Wn.2d 290, 296-97, 119 P.3d 318 (2005). The People, having had their

votes put on hold to allow I-976 to be considered on the merits by the

superior court, now have a strong interest in having I-976 finally take effect.

Second, while Appellants focus on the fiscal impact that the

COVID-19 emergency has on them and other municipalities in arguing for

a continuation of the injunction, their argument completely ignores the

significant fiscal impact that the COVID-19 emergency is having on the

People of the State of Washington. As the superior court explained in its

decision declining to continue its March 27, 2020, deadline for a hearing on

continuing the preliminary injunction:

Almost overnight, thousands of Washington residents have lost jobs due to the public health crisis. Ongoing, sizeable job losses are predicted for the near future. Washington residents continue to receive invoices from the State requiring them to pay motor vehicle license fees and taxes,

29

some of which might not be collectible were I-976 to be implemented. The difference between what is currently owed versus what one would owe if I-976 were to be implemented might be substantial in some instances, perhaps in the hundreds of dollars. For some Washington residents who have just lost their jobs, who now face grave financial peril, receiving a car tab invoice that they can no longer afford could plunge them into dire straits or force them into harsh dilemmas.

Resp’ts App. 131. As the superior court properly recognized, requiring

Washingtonians to continue to pay the motor vehicle taxes and fees that

were repealed by I-976 during this time of extreme economic hardship will

have a significant, negative financial impact on many Washingtonians. This

economic hardship on the People—which Appellants completely ignore—

weighs heavily against continuing to stay implementation of I-976 pending

appellate review.

Nor is this harm alleviated by the fact that “there is a viable refund

process in the event I-976 is ultimately upheld.” Mot. at 31-32. As layoffs

continue to mount amid the COVID-19 crisis, the fact that state residents

will one day be entitled to a refund does not mitigate the harm to

Washington residents of having to pay extra motor vehicle taxes and fees

now, during this frightening time of economic decline, when many residents

may no longer have the extra funds needed to pay the taxes and fees

repealed by I-976. This too weighs against the stay.

Third, Appellants’ contention that the State will suffer no harm if it

has to pay refunds does not withstand scrutiny. See Mot. at 31-32. Setting

aside the significant resources the State will have to expend to process

hundreds of thousands of refunds, see, e.g., Appellants’ App. 430-31, 449-

30

51, Appellants’ claim that they must continue to collect and spend the taxes

and fees repealed by I-976 to avoid the “economic shock” of “I-976’s

immediate and permanent revenue reductions” raises serious questions as

to how these refunds would ever be funded. Mot. at 30. Either Appellants

cannot get by without spending the money they receive from the fees and

taxes repealed by I-976—in which case they will be unable to compensate

the State for the refunds that must be paid—or Appellants are able to get by

without spending this money—in which case their alleged harms are far less

substantial than they currently suggest. But they cannot have it both ways.

See Appellants’ App. 1502-03 (superior court’s preliminary injunction

order which warned that “[a]ny municipality or political subdivision that

accepts such funds while this Order is in effect, including those that are not

parties to this lawsuit, do so subject to the likelihood that refunds of

overpayments may be required should the State ultimately prevail in this

action”). This also weighs against Appellants’ claim of harm.

Moreover, a stay is not necessary to preserve the fruits of

Appellants’ appeal. Even if this Court were to later reverse the superior

court, Appellants would achieve the fruits of their appeal in that they could

again charge the taxes and fees that I-976 eliminated. Any loss of revenue

would be temporary. This would hardly result in the “destruction of the

fruits of a successful appeal.” Cronin v. Cent. Valley Sch. Dist., __Wn. App.

__, 456 P.3d 857, 860-61 (2020) (emphasis added) (quoting Wash. Fed’n of

State Emps. v. State, 99 Wn.2d 878, 883, 665 P.2d 1337 (1983)).

31

The cases Appellants cite do not show that a temporary loss of

revenue destroys the fruits of an appeal. In Shamley v. City of Olympia, 47

Wn.2d 124, 125, 286 P.2d 702 (1955), a group sought to prevent the cutting

of trees for sale to “preserve the natural beauty of the area.” Absent a stay,

the trees would be removed and sold, and a successful appeal could not

place the trees back in the ground. Id. at 126. Here, by contrast, if Appellants

are ultimately successful, they will be able to again collect the taxes and

fees at issue. The temporary inability to collect revenue is also unlike the

situation in Boeing Co. v. Sierracin Corp., 43 Wn. App. 288, 716 P.2d 956

(1986), where the Court was convinced that the appellant “would most

probably be” forced out of business during the pendency of the appeal. Id.

at 292. And Kennett v. Levine, 49 Wn.2d 605, 304 P.2d 682 (1956),

involved neither a loss of revenue nor a temporary situation, but rather the

removal of an appointed official from office and the immediate appointment

of a successor.

In sum, the People have spoken. After having their votes placed on

hold for months in order to allow the superior court to issue a ruling on the

merits, the superior court has now determined that I-976 is constitutional

and should be allowed to take effect. The economic impact on Appellants

should not alter this outcome. Simply put, Appellants’ economic harm does

not outweigh the combined harms to the will of the People by continuing to

enjoin an initiative that has been found to be lawful, and the economic harm

to the People, who are being asked to continue to pay the taxes and fees they

repealed through I-976, amid a growing economic crisis. The potential for

32

refunds does not alter this analysis. Accordingly, because the comparative

harms of a stay pending appeal weigh in favor of the People of Washington,

Appellants have failed to sustain their burden and I-976 should be allowed

to take effect pending review by this Court.

IV. CONCLUSION

For the foregoing reasons, this Court should deny Appellants’

Emergency Motion for Stay Pending Review.

RESPECTFULLY SUBMITTED this 27th day of March 2020.

ROBERT W. FERGUSON

Attorney General

s/ Alan D. Copsey

ALAN D. COPSEY, WSBA #23305

ALICIA YOUNG, WSBA #35553

KARL SMITH, WSBA #41988

Deputy Solicitors General

P.O. Box 40100

Olympia, WA 98504-0100

(360) 753-6200

LAURYN K. FRAAS, WSBA #53238

Assistant Attorney General

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 521-5811

Attorneys for Respondent State of

Washington

MARY ROBNETT

Prosecuting Attorney

s/ Daniel R. Hamilton

DANIEL R. HAMILTON,

WSBA #14658

FRANK A. CORNELIUS,

WSBA #29590

Pierce County Prosecutor/Civil

955 Tacoma Avenue South,

Suite 301

Tacoma, WA 98402-2160

(253) 798-7746

Attorneys for Intervenor-

Defendant Pierce County

33

DECLARATION OF SERVICE

I hereby declare that on this day true copies of the foregoing

document were filed with the Court and served via CM/ECF upon the

following parties:

King County:

David J. Hackett, Attorney [email protected]

David J. Eldred, Attorney [email protected]

Jenifer Merkel, Attorney [email protected]

Erin B. Jackson, Attorney

[email protected]

City of Seattle:

Carolyn U. Boies, Attorney [email protected]

Erica Franklin, Attorney [email protected]

John B. Schochet, Attorney

Marisa Johnson, Legal Assistant

[email protected]

[email protected]

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:

Paul J. Lawrence,

Attorney

[email protected]

Matthew J. Segal,

Attorney

[email protected]

Jessica A. Skelton,

Attorney

[email protected]

Shae Blood, Attorney [email protected]

Sydney Henderson, Legal

Assistant

[email protected]

Respondent/Intervenor-Defendant Pierce County:

Daniel Hamilton [email protected]

Frank A. Cornelius [email protected]

Respondent/Intervenor-Defendant Clint Didier:

Stephen W. Pidgeon [email protected]

Respondent/Intervenor-Defendants Tim Eyman, Michael Fagan, nad

file://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]%20mailto:[email protected]://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]:[email protected]:[email protected]://///ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]%20mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

34

Jack Fagan:

Mark D. Kimball: [email protected]

For Amicus Curiae San Juan County:

Randall K. Gaylord [email protected]

DATED this 27th day of March 2020, at Seattle, Washington.

s/Kristin D. Jensen Confidential Secretary

mailto:[email protected]:[email protected]

DECLARATION OF ALAN D. COPSEY IN SUPPORT OF DEFENDANT STATE OF WASHINGTON AND INTERVENOR-DEFENDANT PIERCE COUNTY’S JOINT MOTION FOR SUMMARY JUDGMENT NO. 19-2-30171-6 SEA

1 ATTORNEY GENERAL OF WASHINGTON Solicitor General’s Office

P.O. Box 40100 Olympia, WA 98504-0100

(360) 753-6200

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The Honorable Marshall Ferguson Noted for Consideration: February 7, 2020, at 9:00 a.m.

With Oral Argument

STATE OF WASHINGTON KING COUNTY SUPERIOR COURT

GARFIELD COUNTY TRANSPORTATION AUTHORITY; et al., Plaintiffs, and WASHINGTON ADAPT; TRANSIT RIDERS UNION; AND CLIMATE SOLUTIONS, Intervenor-Plaintiffs, v. STATE OF WASHINGTON, Defendant, and CLINT DIDIER; PERMANENT OFFENSE; TIMOTHY D. EYMAN; MICHAEL FAGAN; JACK FAGAN; and PIERCE COUNTY, Intervenor-Defendants.

NO. 19-2-30171-6 SEA DECLARATION OF ALAN D. COPSEY IN SUPPORT OF DEFENDANT STATE OF WASHINGTON AND INTERVENOR-DEFENDANT PIERCE COUNTY’S JOINT MOTION FOR SUMMARY JUDGMENT

I, Alan D. Copsey, declare as follows:

1. I am an attorney of record for Plaintiff State of Washington, and make this

declaration based on my personal knowledge.

Resp'ts App. - 1



P.O. Box 40100 Olympia, WA 98504-0100

(360) 753-6200

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2. Attached hereto as Exhibit 1 is a copy of the November 5, 2019, General Election

Results for Initiative Measure No. 976 (I-976) on the Washington Secretary of State’s website.

Exhibit 1 was printed on January 9, 2020, and is available at the following address:

https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976.html.

3. Attached hereto as Exhibit 2 is a copy of the November 5, 2019, General Election

Results by County for I-976 on the Washington Secretary of State’s website. Exhibit 2 was

printed on January 9, 2020, and is available at the following address:

https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-

976_ByCounty.html.

4. Attached hereto as Exhibit 3 is a true and correct copy of I-976, which was passed

on November 5, 2019. Exhibit 3 was downloaded from the Washington Secretary of State’s

website on January 9, 2020, and is available at the following address:

https://sos.wa.gov/_assets/elections/initiatives/finaltext_1519.pdf.

5. Attached hereto as Exhibit 4 is an article entitled “Transportation Benefits

District” from the Municipal Research and Services Center’s website. Exhibit 4 was printed on

January 9, 2020, and is available at the following address: http://mrsc.org/Home/Explore-

Topics/Governance/Forms-of-Government-and-Organization/Special-Purpose-Districts-in-

Washington/Transportation-Benefit-Districts.aspx.

6. Attached hereto as Exhibit 5 is the Fiscal Impact Statement for I-976. Exhibit 5

was downloaded from the State of Washington’s Office of Fiscal Management website on

January 9, 2020, and is available at the following address:

https://ofm.wa.gov/sites/default/files/public/budget/ballot/2019/FiscalImpactStatementInitiativ

e976-093019.pdf.

7. Attached hereto as Exhibit 6 is list of Local Transportation Benefit District Fees

on the Washington State Department of Licensing’s website. Exhibit 6 was printed on January 9,

Resp'ts App. - 2

https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976.htmlhttps://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976_ByCounty.htmlhttps://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976_ByCounty.htmlhttps://sos.wa.gov/_assets/elections/initiatives/finaltext_1519.pdfhttp://mrsc.org/Home/Explore-Topics/Governance/Forms-of-Government-and-Organization/Special-Purpose-Districts-in-Washington/Transportation-Benefit-Districts.aspxhttp://mrsc.org/Home/Explore-Topics/Governance/Forms-of-Government-and-Organization/Special-Purpose-Districts-in-Washington/Transportation-Benefit-Districts.aspxhttp://mrsc.org/Home/Explore-Topics/Governance/Forms-of-Government-and-Organization/Special-Purpose-Districts-in-Washington/Transportation-Benefit-Districts.aspxhttps://ofm.wa.gov/sites/default/files/public/budget/ballot/2019/FiscalImpactStatementInitiative976-093019.pdfhttps://ofm.wa.gov/sites/default/files/public/budget/ballot/2019/FiscalImpactStatementInitiative976-093019.pdf



P.O. Box 40100 Olympia, WA 98504-0100

(360) 753-6200

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2020, and is available at the following address:

https://www.dol.wa.gov/vehicleregistration/localfees.html.

8. Attached hereto as Exhibit 7 is a list of Proposed Initiatives to the Legislature –

2018 including I-976 on the Washington Secretary of State’s website. Exhibit 7 was printed on

January 9, 2020, and is available at the following address:

https://www.sos.wa.gov/elections/initiatives/initiatives.aspx?y=2018&t=l.

9. Attached hereto as Exhibit 8 is a copy of the letter containing the ballot title and

ballot measure summary for I-976 that was submitted by the Washington State Attorney

General’s Office to The Honorable Kim Wyman on March 26, 2018. Exhibit 8 was downloaded

from the Washington Secretary of State’s website on January 9, 2020, and is available at the

following address: https://www.sos.wa.gov/elections/initiatives/initiatives.aspx?y=2018&t=l.

10. Attached hereto as Exhibit 9 is a true and correct copy of Petitioner Tim Eyman’s

Motion to Dismiss Challenges to Ballot Titles for Initiative Measure No. 976 and 976, filed on

April 17, 2018, in Thurston County Superior Court, No. 18-2-01704-34, as well as the Court’s

April 18, 2018, Order granting that motion. It was obtained electronically from Thurston County

Superior Court on January 9, 2020.

DATED this 10th day of January 2020, at Olympia, Washington.

/s/ Alan D. Copsey ALAN D. COPSEY

Resp'ts App. - 3

https://www.dol.wa.gov/vehicleregistration/localfees.htmlhttps://www.sos.wa.gov/elections/initiatives/initiatives.aspx?y=2018&t=lhttps://www.sos.wa.gov/elections/initiatives/initiatives.aspx?y=2018&t=l



P.O. Box 40100 Olympia, WA 98504-0100

(360) 753-6200

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CERTIFICATE OF SERVICE

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

CM/ECF and by email upon the following parties:

Contacts for Plaintiff King County:

Name, Title: Email: David J. Hackett, Attorney [email protected] David J. Eldred, Attorney [email protected] Jenifer Merkel, Attorney [email protected] Erin B. Jackson, Attorney [email protected]

Contacts for Plaintiff City of Seattle:

Name, Title: Email: Carolyn U. Boies, Attorney [email protected] Erica Franklin, Attorney [email protected] John B. Schochet, Attorney Marisa Johnson, Legal Assistant

[email protected] [email protected]

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: Email: Paul J. Lawrence, Attorney [email protected] Matthew J. Segal, Attorney [email protected] Jessica A. Skelton, Attorney [email protected] Shae Blood, Attorney [email protected] Sydney Henderson, Legal Assistant [email protected]

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

Email: [email protected]

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


Resp'ts App. - 4

file://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]%20mailto:[email protected]://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]:[email protected]:[email protected]://ATG.WA.LCL/ATG/DIV/COMSEA/SHAREDCASES/COM/I976_10864314/Pleadings/WORD/[email protected]%20mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]



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


DATED this 10th day of January 2020, at Seattle, Washington. s/ Morgan Mills MORGAN MILLS Legal Assistant

Resp'ts App. - 5

mailto:[email protected]

Exhibit 1

Resp'ts App. - 6

Yes

No

November 5, 2019 General Election Results

Initiative Measure No. 976Last updated on 11/26/2019 4:55 PM

Measure Vote Vote %

1,055,749 52.99%

936,751 47.01%

Total Votes 1,992,500 100%

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Initiative Measure No. 976 County Results & Map

Page 1 of 1November 5, 2019 General Election Results - Initiative Measure No. 976

1/9/2020https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976.html

Resp'ts App. - 7

Exhibit 2

Resp'ts App. - 8

Yes

November 5, 2019 General Election Results

Initiative Measure No. 976 - County ResultsLast updated on 11/26/2019 4:55 PM

County Measure Vote Vote %

Adams 2,030 70.93%

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52.99%

47.01%

49

Initiative Measure No. 976 Results Summary

Page 1 of 9November 5, 2019 General Election Results - Initiative Measure No. 976 County Breakdo...

1/9/2020https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976_ByCo...

Resp'ts App. - 9

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

832 29.07%

Total Votes 2,862 100%

Asotin 4,080 64.57%

2,239 35.43%


Benton 29,814 66.93%

14,733 33.07%


Chelan 13,702 61.28%

8,657 38.72%


Clallam 13,992 50.74%

13,584 49.26%


Clark 63,104 60.79%



Resp'ts App. - 10

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

40,695 39.21%


Columbia 918 58.92%

640 41.08%


Cowlitz 20,766 71.82%

8,149 28.18%


Douglas 7,117 68.11%

3,333 31.89%


Ferry 1,795 72.82%

670 27.18%


Franklin 8,953 72.21%



Resp'ts App. - 11

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

3,446 27.79%


Garfield 590 57.45%

437 42.55%


Grant 12,492 72.84%

4,657 27.16%


Grays Harbor

12,793 63.18%

7,456 36.82%


Island 14,770 49.41%

15,121 50.59%


Jefferson 5,876 39.61%


1/9/2020https://results.vote.wa.gov/results/current/State-Measures-Initiative-Measure-No-976_ByC

supreme court of the state of washington...fee” as “a fee collected by the state of...

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