Conservative activist Eyman 'in a quandary' following judge's decision in Wash. AG's lifetime ban request

By Karen Kidd | Apr 8, 2019

Longtime Washington conservative activist Tim Eyman from a "$30 car-tab" initiative photo posted to his Facebook page in March   facebook.com/tim.eyman.370

OLYMPIA, Wash. (Legal Newsline) – Longtime Washington conservative activist Tim Eyman says he is unsure of his next move following a decision by a judge in the state's capital late last week to not rule out punishing him with what Eyman feels is a lifetime ban on political activity.

Eyman, who has for about two decades pursued anti-tax initiatives in the state, including 976 or "$30 car-tabs" on the ballot in November, told Legal Newsline that he doesn't know whether an appeal of the "nondecision by the judge" is an option.  

"It's not like I have a strategy," Eyman said. "I don't know what I'm doing, I'm not an attorney. I don't know what can be done, what can't be done. Who do you appeal to, do you take it to federal court, do you go to the circuit court of appeals, do you appeal to the Supreme Court; can it even be appealed? I don't know any of that stuff. I'm in a quandary on what to do next."

On Friday, Thurston County Superior Court Judge James Dixon denied Eyman's motion for partial summary judgment to strike Ferguson's request for the ban as a possible punishment for past misdeeds alleged in the attorney general's case.

Thurston County Superior Court Judge James Dixon   thurstoncountywa.gov

Before Friday's hearing, Eyman said he "literally could not imagine a scenario where the judge wouldn't say, 'of course this is absurd, I'm going to strike it down'" and that it was "a real gut-punch" when the judge didn't say that.

A spokeswoman in the office of Washington's Democrat Attorney General Bob Ferguson, who has been pursuing the $2.1 million civil case against Eyman since March 2017, declined comment following the hearing.

Video of Friday's hearing has been posted online by Washington's public affairs network TVW.

"I thought that if we could get the lifetime ban knocked out, then we could just focus on the individual allegations and refute those," Eyman said. "Now the lifetime ban isn't even knocked out, the whole thing is just this big wet blanket that's going to be wrapped around me for years on end, not just financially but also potentially the complete elimination of my free speech rights. It's just a really awful, terrible, outcome."

Ferguson is seeking an order that would prevent Eyman from handling the finances of any political group. It's something Eyman feels would essentially ban him from political activism.

"The court hastens to add that it's not really a motion for summary judgment, that's not the posture of the case," Dixon said during the conclusion of Friday's hearing. "The relief being sought is either declaratory judgment or an advisory opinion, as I mentioned earlier. But I'll enter an order denying it."

Dixon also rejected without prejudice the First Amendment advocacy group Institute for Free Speech's amicus brief, part of a flurry of filings prior to the hearing, that sided with Eyman on his constitutional free speech claims. The institute said in its brief that the state's requested ban is "nothing short of a prior restraint on protected First Amendment activity."

The institute, previously called the Center for Competitive Politics, is best known for its work culminating in the landmark 2010 U.S. Supreme Court ruling in Citizens United v. FEC. That ruling identified money spent in political causes as constitutionally protected speech.

Dixon explained to the institute's local attorney, Nicholas "Nick" Power, a Friday Harbor solo practitioner who last year unsuccessfully ran for San Juan County Prosecutor, that it was too soon for such a brief in the case.

"In the future, if - capital 'I,' capital 'F' - this court were to find ultimately that there is an issue with respect to the proper remedy, the court might consider a motion for filing of an amicus brief," Dixon said.

The state's request for the lifetime ban stems from Ferguson's case that accuses Eyman of moving funds between the two initiative campaigns and taking money from a signature-gathering firm, Citizen Solutions, also a named defendant in the case. Washington election law allows movement of funds between political committees but requires the transfer be reported to the state's Public Disclosure Commission, which Eyman is accused of not doing.  

At issue during Friday's hearing was whether Eyman can be barred from "managing, controlling, negotiating, or directing financial transactions of any kind for any political committee in the future," as the state's litigation has described the ban.

Eyman and Ferguson agree that the state is seeking a lifetime political ban on Eyman. What they don't agree about is the nature of that ban.

Eric Newman, chief litigation counsel for the Washington Attorney General's antitrust division, argued the state's version of the ban during Friday's hearing. Eyman being punished by never again being allowed to handle political action committee money would not infringe his free speech rights, Newman said.

Newman noted that Eyman agreed to an injunction in a 2002 settlement with Washington's previous Democrat Attorney General Christine Gregoire, later Governor, that barred him from ever again acting as treasurer for a political committee.

Eyman disputed the state's version of the ban, telling Dixon, a Gregoire appointee, that the state's request would bar all of his free speech rights because it would be impossible to pursue initiatives and other forms of political speech that do not directly or indirectly involve money.

"The courts have been very explicit, money is speech," Eyman said, as he referenced $91,000 a donor left to Eyman in his will that is contingent on Eyman's continued ability to work on ballot initiatives in Washington. Those funds are unavailable to him because of the state's request for a lifetime ban, Eyman told Dixon.

"It's clearly something that they want," Eyman said. "It is the crux of the entire case, that they want to be able to prohibit me from being able to participate in political action committees. This idea of, well, he can participate in political action committees but he can't involve himself in the financial transactions is just as absurd as saying that he can be a truck driver as long as he can't use a truck."

Eyman warned Dixon of the "chilling effect" the ban would have on others, who will hesitate to become involved in political activity, and the attention the case likely is attracting from attorneys general in other states, who might want to use a similar strategy, should Ferguson's request became reality.

Newman countered that Eyman is a "shadow treasurer," that his points are "all misdirection" and that Eyman is "absolutely and undeniably a PAC" but is not registered as a PAC, as required under state law. Newman said the state is not trying to infringe on Eyman's right to free speech but that Eyman wants to harness the speech rights of others by directing how political action committees in which he is involved spends its money.

"It's his burden to show you that it is protected speech and he didn't give you a single case that said it was," Newman said. "It is not protected speech but even if it were, the court has authority to limit speech - reasonably - in these circumstances."

By the end of the hearing, Dixon made no final ruling about the state's ban request. Dixon said he was "not swayed by what happens in the event this court were to make a particular ruling" and that he knew Eyman "is anxious to get a ruling from the court" but that Eyman's motion is not ripe for a ruling.

Dixon said that the proper time to make that decision will be during trial, which could be years away.

"What Mr. Eyman is asking the court to do is either issue an advisory opinion, which would be improper, or make a declaratory judgment, which would be unripe," Dixon said. "This court is not going to rule on a remedy available to the state unless and until this court, sitting as a trier of fact, makes finding and conclusions as to whether the state has proven its case. It would be wrong for the court to rule otherwise."

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