After filing for bankruptcy and then having the AG bully my attorney off the case, I was forced to represent myself. In March 2019, I filed a partial summary judgement motion to dismiss the AG’s proposed lifetime ban on my future political activity (because it’s so absurd). I had the benefit of my previous attorneys’ brief on the subject (before the AG got rid of them).
But with my reply, I had to write it myself.
Here it is — please read it:
SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON
STATE OF WASHINGTON,
TIM EYMAN, et al.,
Case No. 17-2-01546-34
DEFENDANT TIM EYMAN’S REPLY TO THE STATE’S DEFENSE OF ITS’ PROPOSED INJUNCTION ON EYMAN’S FUTURE POLITICAL ACTIVITY
My opening brief was written by brilliant attorneys, steeped in the intricacies and nuances of court precedents, the First Amendment, and other constitutional protections. This brief here was written by me because the State has successfully bullied current and prospective legal counsel from representing me in this case. The chilling effect the State has had on the legal community is a perfect metaphor for the chilling effect they will have on the citizenry if the lifetime ban it covets is not rejected by the Court.
A PROHIBITION ON POLITICAL SPENDING IS THE EQUIVALENT OF A PROHIBITION ON POLITICAL SPEECH
After the Attorney General’s splashy press conference in 2017 where the State publicly announced its lawsuit against me, Seattle PI columnist Joel Connelly wrote: “Ferguson is also pursuing a ‘nuclear option’ against Eyman … The AG will ask the court to permanently bar Eyman from participating in or directing financial transactions for any political committees … If the ‘nuclear option’ succeeds, ‘Eyman will have to find something else to do with his life’ …”
That assessment hits the nail on the head. I have been organizing and promoting citizen initiatives for 20 years – the State is asking the Court to impose a penalty on me that will force me to give that up. It seeks to prevent me – in perpetuity – from teaming up with other like-minded citizens to initiate political ideas and reforms that voters can vote on. If the Court were to grant the State their proposed penalty — “barring Mr. Eyman from managing, controlling, negotiating, or directing financial transactions of any kind for any political committee in the future” – I would have no idea how to comply with that and still be politically active at all. Indeed, it may not be possible.
The words and phrases are so broad, so vague, so open to interpretation, that it would be impossible for me to know what I could or couldn’t do or say.
Having been involved with scores of initiatives campaigns, I know there are hundreds, if not thousands, of financial transactions and decisions made for each campaign. Some are minor, others more significant.
For example, last year, Karen and I sold off our family’s retirement fund and loaned $500,000 to kick-start the signature drive for our $30 Tabs Initiative. Loaning money to an initiative committee is perfectly legal under the Fair Campaign Practices Act, but it would be illegal for me to do so in the future because such an action could be interpreted to violate the ambiguous phrase “directing financial transactions of any kind” because I “directed” the money to the committee by loaning it.
Could I encourage people to donate to a committee, whether it was mine or someone else’s? A political donation is certainly a “financial transaction of any kind” so me asking folks to give money to a political committee would be unlawful. Last week, I ordered a banner for a referendum and just yesterday, I paid $3.30 to print up 5 copies of a petition for an initiative I’m sponsoring. Even that basic level of political activity would be illegal under the State’s requested remedy.
Loaning money to an initiative committee should be legal, having a loan repaid should be legal, encouraging people to donate to a political cause should be legal, and yes, ordering a banner and printing up petitions should be legal.
The ability to spend money on political speech is the equivalent of making the speech itself. The Supreme Court established that fundamental truth over 40 years ago. And this ability to speak freely on matters of public concern is at the heart of the First Amendment protections granted to all Americans regardless of their past. The State’s proposed punishment – filled with words and phrases undefined and not permitted by the FCPA – guarantees nothing illegal will occur because the only way to guarantee not running afoul of the State’s lifetime ban is by not being politically active at all. Such a ban deprives me of all rights protected under the First Amendment.
THE STATE COMPLAINS THAT I DID NOT IDENTIFY PRECEDENT SUPPORTING MY OPPOSITION TO THE STATE’S LIFETIME BAN
On page 21 of its Reply brief, the State writes, “Defendant Eyman has provided no authority that suggests that he has a constitutional right to personally manage the financial transactions of a political committee under the First Amendment.”
The State’s argument runs contrary to the very definition of a political action committee. According to Merriam-Webster, a PAC is “a group formed (as by an industry or an issue-oriented organization) to raise and contribute money to the campaigns of candidates likely to advance the group’s interests.” The entire purpose of a PAC is to raise money and direct payments to amplify the political speech of its supporters. Collaboration in the management of financial transactions is necessary for my right of association with a PAC. My motion includes literally hundreds of citations as to why I am guaranteed the right to freedom of speech and association and how the State’s lifetime ban runs completely contrary to those previous court rulings.
In addition, no state government has ever sought such a blatantly unconstitutional injunction. If there were a court ruling the State could cite supporting such a ban, the State would have included it in their brief – it did not, because it cannot.
The State is essentially saying that money is not speech. That I’ll still be able to exercise my right to speak but only if money is not involved. How can a reasonable person do that with any degree of certainty when the State’s proposed injunctive relief is so nebulous, undefined, and open to interpretation?
The State says I cannot “personally manage the financial transactions of a political committee” – I have no idea what that means.
THE STATE’S LIFETIME BAN IS NOT CONTENT-NEUTRAL
On page 22, the State writes, “ … the limitation on Defendant Eyman’s handling of financial transactions is content neutral. The injunction would bar him from handling financial transactions for any political committee, regardless of its message.”
It would only be content-neutral if my politics were content-neutral. But they are not.
I co-sponsor initiatives that put limits on governments’ power. And thousands of heroic citizens across our state help me and my team get them on the ballot and millions of voters pass them. As outlined in Exhibit A, from 1998-2018, a total of 60 statewide initiatives qualified for a public vote – of those, I co-sponsored 16 of them.
Of the 60 initiatives that qualified for a public vote, 29 contained conservative-leaning policies – and voters passed 14 of them. 70% of them — 10 of 14 – were co-sponsored by me. Examples include $30 tabs, 1% property tax cap, 2/3 vote to raise taxes, performance audits of government.
There is clearly a hunger among the electorate for initiatives that limit governments’ power. But there will be far fewer of them if the State’s injunction on me is imposed.
Not just because it’ll stop me, but because it will chill and deter others from picking up where I left off. The State’s lifetime ban is not content-neutral.
THE STATE’S CASE AGAINST ME IS DEEPLY FLAWED
The State blatantly overreaches by alleging violations of statutes that it wishes applied to me but clearly do not. By their own unambiguous language, neither RCW 42.17A.235 nor .240 (“Reporting Provisions”) of the Fair Campaign Practices Act apply to me, because those provisions only apply to campaign treasurers and political candidates. I am neither. Similarly, under no circumstances does RCW 42.17A.445 (“Personal Use Provision”) apply to me, because none of the funds at issue were campaign funds. Well-established rules of statutory construction prohibit the contortion of a statute’s plain language to say what it clearly does not.
NONETHELESS, WHAT IF ALL THE STATE’S ALLEGATIONS ARE TRUE? THEY’RE NOT, BUT LET’S JUST PRETEND THEY ARE
Let’s pretend that I willfully ignored the advice of my treasurer, my accountant, and all those around me who know, like I do, what a minefield Washington’s campaign reporting requirements are, and I engaged in core political speech anyway, qualifying 16 statewide initiatives for a public vote in the process (Exhibit A). Who was harmed? No one. Did our political committees spend donors’ money irresponsibly? Our initiatives qualified for nearly half the cost as other initiatives. Non-Eyman initiatives spent, on average, $1,250,097 to qualify – Eyman initiatives spent, on average, $672,448 to qualify (see Exhibit A).
In 2012, our tougher-to-raise-taxes initiative spent $1.2 million to qualify while the only other 2012 initiative spent $2.8 million. (Exhibit A).
I consistently qualify our initiatives for a public vote more affordably than anyone.
The State badly miscalculated when they included such ridiculous penalties. Millions in fines is egregious, but a lifetime ban on future political activity? That rises to an unprecedented level of unconstitutionality.
THE STATE CRITICIZES MY CURRENT PLEAS FOR HELP
On page 17, the State writes: “On PermanentOffense.com, the website that Defendant Eyman’s political committee uses to promote its initiatives, he features pleas for donations to fund his legal defense.”
It’s not illegal to ask for assistance as I defend myself from the State’s legal assault. It’s my First Amendment right to ask people for help, particularly when it comes to protecting my rights to petition the State and my right to associate. When the State is seeking millions in fines (that I don’t have) and escalating my legal costs with what is functionally a SLAPP lawsuit, it is a necessity for me to ask for help. It is not compensation, it is friends and family being compassionate and generous and helping a fellow citizen survive a brutal political attack.
A fair interpretation of prohibiting me from “negotiating or directing financial transactions for any kind of political activity” would preclude me from raising money for a political committee.
But in light of the State’s criticism of my legal defense pleas, one can easily interpret their verbiage to mean something even broader: that Tim Eyman cannot raise any money for … Tim Eyman. Nor can I earn an income. Or have a bank account. Because the State is claiming that I, Tim Eyman personally, am a political committee.
Since the State complains of my pleading for financial help, where friends and family are clearly told they are giving me money for my personal use, my family, or for me to defend myself from the State’s attacks, isn’t the State’s real goal, then, to cut me off from all financial support?
Given all the subpoenas, depositions, and other harassment of friends and family who have supported me previously, the State is clearly determined to isolate me and make it impossible, if not literally illegal, for me to not only engage in political activity, but to engage in any financial transactions at all.
The fact that the State devotes 17 pages to highlighting a laundry list of horribles that they are accusing me of does not make their argument in favor of a lifetime ban more persuasive. As my previous counsel pointed out, if the State’s proposed lifetime ban is imposed on me, sex offenders will have greater free speech rights than I will (Packingham v North Carolina, 137 S. Ct. 173 – Supreme Court 2017; State v. Padilla, 416 P. 3d 712 – Wash: Supreme Court 2018). I will be barred from “managing, controlling, negotiating, or directing financial transactions of any kind for any political committee in the future” – but convicted felons will not (there is no such restriction under the FCPA). The absurdity of the State’s position is difficult to overstate.
The State’s threatened injunction is incredibly broad and hopelessly vague – it would be impossible to comply with while exercising my First Amendment rights. As numerous court cases have established, money is speech: a limit on financial resources is a limit on my ability to amplify my speech using those financial resources (as illustrated by the Petersen estate distribution which is being withheld because of the State’s threatened lifetime ban). Prior restraint is a bed-rock constitutional principle that is clearly at issue with the State’s draconian ill-defined verbiage. The State’s proposed penalty doesn’t just punish me for alleged past wrongs, it punishes me in the future by altogether prohibiting political speech I haven’t even contemplated yet.
I am 53 years old. I have been organizing and promoting initiatives for 22 years and I fully intend to continue doing so for another 20-30 years. There are a lot of voters who support the ideas I promote. But even if no one did, I should still have the right to express those ideas in the political arena via citizen initiatives without being muzzled.
The Court should decline the State’s invitation to rewrite the Fair Campaign Practices Act, the Washington state Constitution, and the United States Constitution. I ask the Court to rule that the injunctive relief being sought by the State is impermissible under the FCPA, the state Constitution, and the US Constitution. It is an unprecedented interpretation of the law and of my rights under the Constitution. It should be dismissed because there is no basis in law for it.
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Dated this 29th day of March, 2019 at Bellevue, Washington.
What did the judge do?
He went along with the AG and kept the lifetime ban in the lawsuit. And that’s the biggest indicator this judge will rubberstamp the AG today.
In my DNA is relentless optimism — I always see the glass as half full — I always see the silver lining — I always have faith that God has a plan for all of us. But going into court today, it’s difficult to imagine this judge — appointed by Gregoire and publicly elected in liberal Thurston County — dismissing this case even though the law and the Constitution demand it. For years, he’s repeatedly sided with the AG on motion after motion. And with Ferguson devoting nearly $2 million in taxpayer money going after me, it’s tough to envision this judge humiliating him with an adverse ruling.
I’ll make sure to let you know how it turns out.
With the entire weight and power of the government bearing down on us for 8 1/2 years, we’ve only withstood it thanks to the prayers, friendship, love, and support of thousands of great people who recognized this abuse of power and injustice and wanted to help us fight back.
We continue to need your help. Please donate to my legal defense fund here:
Debit Card / Credit card: https://www.paypal.com/
Mail-in donation: Tim Eyman Legal Defense Fund, 500 106th Ave NE #709, Bellevue, WA, 98004
In addition, we worked really hard on our $30 Tabs Initiative:
Karen and I sacrificed a lot — we sold off our retirement fund to kickstart its signature drive:
We’re asking folks to donate to our PAC so we can get paid back. And your donations will also help stop Inslee’s Income Tax and Carbon Tax Schemes.
Donate online by Paypal/Debit/Credit Card:
Or mail a check — made payable to “Permanent Offense” — to:
PO Box 6151
Olympia, WA, 98507.
I love you all.