Ferguson says his office can defend I-976 from legal challenges

OLYMPIA – The state attorney general’s office seems likely to defend the successful car tabs initiative against threatened legal challenges, despite calls from its sponsor and a top Senate Republican that the state hire outside lawyers.

In a letter Monday to Attorney General Bob Ferguson, state Sen. Steve O’Ban, R-Pierce County, wrote that the state should hire outside lawyers because state residents “deserved to have their laws defended by unbiased legal advocates free of conflicts.”

Ferguson said in a press release he would respond directly to O’Ban but that it’s the job of his office to defend the initiative against legal challenge, and it “takes that responsibility very seriously.”

Initiative 976 is ahead by more than 100,000 votes, with less that 90,000 votes remaining to be counted. It doesn’t officially become law until election results are certified in early December.

Officials from the city of Seattle, King County and Sound Transit all announced last week they are considering lawsuits to challenge the constitutionality of the law.

Ferguson’s office is involved with a long-running legal battle with Tim Eyman, the sponsor of I-976, over allegations Eyman violated campaign finance laws in his previous ballot measure operations. In September, a Thurston County Superior Court judge ruled that some $766,000 payments Eyman had claimed as gifts when they were really contributions to various initiative campaigns.

“At a minimum, this raises concerns about your office’s ability to approach legal challenges to Initiative 976 free of bias,” O’Ban wrote.

Eyman also has called for the state to hire private attorneys to defend I-976.

But Ferguson countered that his office previously defended Eyman initiatives, apparently to the sponsor’s satisfaction. His office released a copy of an Eyman email that discussed its work on a lawsuit over Initiative 1366 in early 2016. A few months earlier, voters had approved the measure which called for a reduction in the state sales tax unless the Legislature passed a constitutional amendment requiring super majorities to approve taxes. The attorney general’s office had filed a legal brief defending the measure.

At the time, Eyman called the state’s arguments in favor of I-1366 methodical and meticulous and “completely decimated every single one of the opponents arguments.”

In the end, the state Supreme Court struck down I-1366 on a 9-0 vote, ruling it tied to different things together in an unconstitutional form of “logrolling.”

In his letter, O’Ban also wrote Ferguson’s office has a “clear conflict of interest” because it is defending the state in a lawsuit that challenges the constitutionality of the motor vehicle excise tax being levied by Sound Transit. That tax would be repealed by I-976.

“The only way to ensure that those interests are protected is for the attorney general’s office to hire competent outside counsel to handle any lawsuit challenging the initiative,” argued O’Ban, who has been one of the Legislature’s chief critics of the transit authority and the way it is using the excise tax to fund light rail construction. A member of the Senate Transportation Committee, he also sponsored several unsuccessful bills to change regional transit authorities.

Ferguson’s office countered with a recent comment by his predecessor, Republican Rob McKenna, who told the Seattle Times the lawyers in the office are highly professional and hate to lose. “They’ll go to court and give it their best effort,” McKenna was quoted as saying.