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Yesterday, I filed a petition (linked here) to challenge the ballot title including the statement of subject, concise description, and ballot measure summary in Thurston County Superior Court. The reason I filed this petition is because the original ballot title crafted by the Washington State Attorney General’s office is misleading, inaccurate, and deceptive. The original title “concerns pollution” is just a false label for the Carbon Tax. The petition I filed spells out the arguments reasonably well, but there should be real concern by the citizens of our state that the Attorney General’s office appears to have been entirely captured by wealthy special interests in our state who hope to profit billions
of dollars if they can push this carbon tax scheme through. It is unknown how these special interests were able to so effectively lobby and influence the Attorney General’s office to ignore the plain language and harmful impact of the proposed initiative. It would be nice to know what is happening behind closed doors.
Finally, this is not just another tax that the bureaucrats and politicians in Olympia dump on us with regular, whimsical abandon. This tax would have major impact on average people – increasing the cost of living in our state by ensuring that the cost of everything escalates and the “benefits” ,if any, will never be tangibly realized. The burdens of this tax fall disproportionately on those least able to afford the increased costs and only special interests profit – these special interests might pretend to be “Green” for the environment, but it is the “Green” cash they really want from this initiative.
I’ve never filed one of these before, so the process was new to me. If you want to better understand the process, I provide the details at the end of this article for reference.
Basic Outline of this Petition and Exhibits. Favorite Quotes
The petition filed yesterday is linked here. The exhibits referenced in the exhibit include the complete draft of Initiative 1631 (linked here). The letter from the AG’s office detailing the title and summary (linked here). The complete text of initiative I-732 from 2015 (Carbon Tax again – linked here). The letter from the AG in 2015 providing the title and summary for I-732 (linked here). Page 6 from the Secretary of State’s handbook (linked here). Finally, the initiative’s sponsors helpfully produced a 5 page handout which also calls it a carbon tax (linked here)
The arguments presented in the petition clearly demonstrate and prove that the ballot title and summary issued by the AG’s office is misleading, dishonest, inaccurate, and was drafted to promote the initiative. This is not how the AG is supposed to do its job when it produces ballot titles. This initiative is a carbon tax, it is not “pollution fees.”
Here are a few excerpts from the petition:
“The Statement of Subject is misleading, inaccurate and not impartial and should be changed and corrected to read: ‘Initiative Measure No. 1631 concerns a tax on carbon.” (Sec6 p.2)
“The Attorney General’s Concise Description is not a true and impartial description of the measure’s essential content because it conceals from or does not inform voters that they are being asked to consider a tax on fossil fuels and electricity which they will be paying themselves, either directly or through higher costs on goods and services…” (Sec 13, p4)
“The sponsors of I-1631, The Alliance for Jobs and Clean Energy, describes its plan as a “performance based tax on carbon” or ‘a performance-based carbon tax” and “a carbon tax with a performance-based escalator…” See Exhibit E (Sec 14 p4)
“By acquiescing in the misleading and artful language of the sponsors of I-1631 who with their proposed tax to be disguised as a “fee,” the Attorney General has not phrased the Concise Description without prejudice favoring the measure.” (Sec 16 p. 5)
There are many other arguments laid out in the brief and I encourage everyone to read it (all 8 pages linked here).
How a ballot title challenge works
For those interested in being more active, this outline should help in clarifying the practical elements of how a ballot title challenge works. First, you have to draft your challenge in a format that you can submit to a court. These types of challenges are filed in Thurston County Superior Court because the defendant will be Washington State – specifically the Attorney General’s office – who must defend the ballot title they issued. The state capital is in Thurston County, therefore this is the court which has jurisdiction in these types of cases.
A ballot title challenge is an odd legal duck and the procedures are different than a normal civil lawsuit in a variety of ways:
- Because the ballot title must be resolved before signatures can be gathered on the initiative, there is an expedited court process. I filed my petition yesterday (March 26), and the hearing is likely to be on April 6th, which is lightning speed in the lawsuit world.
- There are no court fees for filing a ballot title challenge. Normally you would have to pay court costs of $245 to file a case.
- The Washington State Attorney General and the Washington Secretary of State
must also be “served” a copy of the petition (lawsuit). Note: if you are doing this “pro se” (which means without an attorney) as I am doing, then you must have someone else deliver and verify that they have “served” these documents on the respective agencies.
- Anyone who is a voter in the State of Washington has “standing” to file a ballot title challenge.
To an attorney, much of this will seem rudimentary and simple, but for the rest of us, some details and preparation are helpful. If you are planning to do this with your favorite proposed initiative title, here are some simple practical steps to remember once you have your document prepared:
- You need to file the challenge within 5 days (not including weekends) of when the ballot title was issued (RCW 29A.72.080) In this case, the AG issued the ballot title on March 20th (see letter), so I had to file this by March 27th. I filed my petition on March 26th, to be safe. This doesn’t provide a lot of time to prepare your arguments.
- You must have at least 5 complete, signed copies of the challenge. One for the Thurston County Clerk, one for the Judge’s Clerk, one for the AG, one for the Secretary of State, and one for yourself to keep.
- Your first stop is the Thurston County Clerk’s office. You need to get a court case assigned (and a judge). This petition is assigned Thurston County Court #18-2-01614-34. They will give you the stamp so that you can stamp this number on all 5 of your copies. You should also stamp the “Filed” on your copies, which is also there at the clerk’s counter.
- The Clerk will give you two copies of a “Notice of Assignment and Notice of
Ballot Title Appeal Deadlines” document – which looks like this and is a way for you to know which judge has been assigned to your case, and it lays out the calendar for the court. They will stamp this as you see in the upper right corner.
- Your second stop is at the Thurston County Judge Clerk’s window which is right across the hallway past the metal detector’s and security. Here you will provide your second copy for the judge and you will get your notice of assignment stamped (looks like this).
- You need to make copies of this notice of assignment with both stamps on it from the clerk’s office and the judge clerk’s window. There is a copy machine in the law library a few steps away – 10 cents a copy. Very convenient.
- Then you need to drive to the Secretary of State’s office. I went to the elections division located off campus at 520 Union Ave, Olympia because they are used to receiving documents like this (rather than the official Secretary of State’s office in the State Capital building). You let the people at the front counter know, and they get someone who can accept service, and this is where the person making service (warning – it can’t be you if you are doing this “pro se”) delivers the third copy and gets a formal stamp on the Notice of Assignment saying it was received (see this copy here).
- Then you go to the AG’s office and at the front counter ask for an attorney to come down and accept service. They will send down one of the new guys to do this.
Repeat the same process as at the Secretary of State’s office. Don’t forget to get your Notice of Assignment stamped here too (see this copy here).
- Don’t forget to have your proof of service signed by the person who delivered the documents (see this).
That is it. Pretty simple. Next stop in court and hopefully the oral arguments are solid, the petition is solid, the exhibits are effective, and we’ll see what happens in front of Judge Murphy April 6th. If we are all fortunate, the AG will have to change their title and be honest with the voters about what this initiative actually is – a Carbon Tax.
OUR CONSTITUTION BEGINS WITH THE PHRASE “WE THE PEOPLE.” IT WAS THE FOUNDER’S INTENT THAT GOVERNMENT BE CREATED BY THE PEOPLE, TO SERVE THE PEOPLE. IT WASN’T THEIR INTENTION FOR THE PEOPLE TO SERVE THE GOVERNMENT. IT WAS ALWAYS INTENDED THAT GOVERNMENT WHICH FAILED TO SERVE THE PEOPLE SHOULD BE “ALTERED OR ABOLISHED.” UNTIL WE RETURN TO THE FOUNDER’S INTENT, WE REMAIN WE THE GOVERNED…
Additional Background articles and documents:
Thurston County Superior Court #18-2-01614-34 – “A Challenge to the ballot title – statement of subject, concise description – and ballot measure summary for initiative 1631, an initiative to the people” – submitted by Glen Morgan pro se – filed March 26, 2018