A legal challenge filed last month by two prominent Republican party officials that shamefully sought to evade Washington’s new law requiring fiscal transparency in initiative descriptions received a good and proper torching today in Thurston County Superior Court, with Judge Allyson Zipp ruling from the bench that three right wing initiatives headed for the ballot would all be subject to public investment impact disclosures, in a big win for the public’s right to know and a big defeat for the state’s right wing.
Zipp’s ruling upheld the applicability of a 2022 law sponsored by State Representative Mia Gregerson (D‑33rd District: South King County) and championed by our team at NPI that is wildly popular with Washington voters of all political stripes. That law says that when a statewide initiative is proposed that would increase state taxes or fees — or cut them — voters have to be informed with a sentence on the ballot taking the following form: This measure would (increase / decrease) funding for _____.
The state has long been in the habit of providing information about ballot measures’ fiscal impacts in the voter’s pamphlet. But voters have previously not been alerted to the presence of those analyses on the ballot itself.
That’s now set to change thanks to our fiscal transparency law.
Washington State Republican Party Chair Jim Walsh and Mainstream Republicans Chair Deanna Martinez are privately worried that the law will harm their chances of passing a slate of destructive initiatives sponsored by Walsh and funded by multimillionaire Republican donor Brian Heywood. Walsh’s pal Tim Eyman, who has experience getting deceptive initiatives past voters, has been warning anyone in Republican circles who’ll listen that the transparency law is a big problem for the slate.
Last month, Walsh and Martinez heeded Eyman’s advice and tasked right wing attorney Joel Ard with presenting arguments that they hoped would stop the Attorney General’s office from writing public investment impact disclosures (PIIDs) for the three initiatives:
- Initiative 2109 (repeals the state’s capital gains tax on the wealthy, thereby repealing billions in education funding)
- Initiative 2117 (repeals the Climate Commitment Act, thereby repealing billions in transportation and clean energy funding)
- … and Initiative 2124 (sabotages the WA Cares Fund by permitting people to withdraw, thereby reducing funding for long-term care)
Ard dutifully drafted a complaint seeking writs of prohibition and mandamus, then filed it in Thurston County Superior Court. Walsh and Martinez began publicizing the existence of the lawsuit several days ago, ahead of today’s oral argument before Zipp.
I described the lawsuit earlier this week as one of the more preposterous our team has ever seen, and I still feel that way about it. It was a pile of weak arguments from top to bottom. The arguments pertaining to why I‑2109 shouldn’t get a PIID were especially absurd — so much so that Solicitor General Noah Purcell, who presented oral argument for the state today, called them “bizarre” both in writing and again verbally.
Ard and Purcell took turns summarizing their briefs for Judge Zipp, who listened intently and sometimes interrupted with questions. She then advised the parties, their counsel, and all media and members of the public present observing that she would be ruling from the bench shortly. She retired to chambers for several minutes, then returned and delivered one of the best verbal rulings I’ve ever heard from a Washington State judge.
It was detailed, thoughtful, methodical.
Step by step, Zipp unpacked the plaintiffs’ arguments and explained why she was not persuaded by them, providing a rationale for why each measure in Walsh’s slate should receive the public investment impact disclosure that the law requires. When she was done, she asked counsel if they had any questions. No one did: not Ard, not Purcell, and not the attorneys representing the proposed intervenors in the case.
The state got the complete victory and the dismissal it was hoping for. Walsh and Martinez were left with nothing. Walsh tried to put a positive spin on his defeat outside the courtroom in a video for his PCOs, donors, and followers, suggesting he and Martinez might appeal and arguing that Judge Zipp’s ruling had a “silver lining” — specifically, that Zipp had held that each initiative on the slate would repeal a tax or a fee.
Of course, OFM (the Office of Financial Management) and the AGO (Attorney General’s Office) had already made such determinations, as the state pointed out in its brief. But Walsh evidently felt he needed to put something in his glass for it to be half full.
Ridiculously, he then tried to argue that he and Martinez weren’t trying to hide information from voters. He made similar comments to The Associated Press:
“We don’t mind the idea of more information, said Walsh, chair of the state Republican Party and a state representative from Aberdeen. ”What we’re concerned about is it won’t be impartial information. It will be partisan rhetoric, weaponized to make the initiatives sound bad. The fight isn’t over. We are going to continue to make the point that we want unbiased non-political information.”
False! Walsh is lying here — plain and simple.
If you read his and Martinez’s lawsuit, as I did, you can plainly see that they very much do mind the idea of more information. The whole point of their lawsuit was to get that additional information scrubbed from the ballot and hidden away from voters. They wanted a judge to order our statewide elected officials — Attorney General Ferguson and Secretary of State Hobbs — to disregard the law! Here’s their prayer for relief:
WHEREFORE, Plaintiffs pray for relief as follows:
- Issuance of a Writ of Mandate compelling the Director of the Office of Financial Management to prepare a revised fiscal impact statement as to I‑2109 which correctly states that the enatcment of I‑2109 will cause no change to state revenue;
- Issuance of a Writ of Prohibition prohibiting the Attorney General and Secretary of State from preparing, certifying, or causing to be printed any public investment disclosure statement as to any of I‑2117, I‑2124, and I‑2109;
- Issuance of a Writ of Mandate compelling the Secretary of State to instruct every county auditor or other county election official to print ballots without any public investment disclosure statement as to any of I‑2117, I‑2124, and I‑2109, and
- Such other relief as the Court deems just and appropriate.
You can see that nowhere in there did the plaintiffs ask the judiciary’s help to get more favorable language. Their aim was to get rid of the PIIDs altogether.
If Walsh were being honest, he would have said something like this:
After we started promoting our lawsuit earlier this week that seeks to trash the forthcoming warning labels that Bob Ferguson’s office is preparing to add to our initiatives, we realized that we had given our opponents a gift. We basically admitted to everyone in Washington that we want to conceal information from voters to improve our measures’ chances of passing. That was a mistake that made us look really bad, so starting today, we’ll be pivoting to calling for neutral language in these things instead.
Walsh was in the Legislature when HB 1876 — the bill that established public investment impact disclosures — was passed. He filed amendments on it, and he spoke against it. He is familiar with it. He knows that the Attorney General’s office has until July 23rd to prepare the phrasing of the disclosures. They haven’t been unveiled yet, so Walsh doesn’t know what words they’ll contain, apart from the ones hardcoded into statute. Nevertheless, he’s breathlessly calling the disclosures “partisan rhetoric.”
How is a simple, factual statement taking a form such as this “partisan rhetoric”?
Simulated PIID for Initiative 2124 (note, not official)
This measure would decrease funding for long-term care.
All it does is state a very pertinent fact about the measure’s consequences.
An inconvenient fact in Walsh’s eyes, no doubt. But a fact, nonetheless.
When HB 1876 was being written, legislators discussed a means of allowing the wording chosen by the AGO for the disclosures to be challenged. The final version of the bill, which became law, provides for such a means. If Walsh and Martinez don’t like the wording the AGO comes up with, they can file a challenge and seek judicial review at the appropriate juncture. RCW 29A.72.028 expressly gives them that opportunity.
But again, they’re not actually interested in improving the wording. They don’t want “impartial” information (or, more strangely, “non-political” information — whatever that’s supposed to mean!) They want a loaded deck. Ideally, some language that invites a yes vote — a question akin to the sort that were in Tim Eyman’s now-abolished push polls that NPI got rid of. They’re not getting that, obviously, and they’re sure sore about it.
You can understand why. These initiatives are a multi-million-dollar investment on megadonor Brian Heywood’s part. They have Walsh’s name on them. They’re a big part of Walsh’s plans for this presidential election cycle. And if they go down in flames, well, that could be a very serious blow to Republicans’ credibility and morale.
A defeat across the board would provide evidence that Washington voters like the key policies that Democrats have been enacting, despite Republicans’ years-long insistence to the contrary. This lawsuit was a gambit to preserve that gambit. It didn’t work, and now Walsh seems intent on digging an even deeper hole for himself by contemplating an appeal — presumably just for optical reasons, to show his base he’s a fighter.
However, if he appeals, then he’s inviting an appellate decision that will result in the creation of case law that probably won’t be to his liking. And he’ll have to keep paying Joel Ard to throw these really weak arguments in front of the judiciary. It’s a no-win situation for him. But for the people of Washington, this case has been illuminating. It has exposed Walsh’s desperation and contempt for the public’s right to know.
Happily, he lost today, and the voters won, thanks to the good sense of Judge Zipp.
Judge Allyson Zipp incinerates Jim Walsh’s shameful lawsuit to hide fiscal impact information from Washington voters is a post from NPI's Cascadia Advocate, the journal of the Northwest Progressive Institute. Published continuously since March of 2004, NPI's Cascadia Advocate provides thoughtful commentary and analysis on regional, national, and world politics. Keep The Cascadia Advocate going by making a contribution to sustain NPI's research and advocacy here.