Order tossed for I-912 backers

The Washington Supreme Court has thrown out a judge’s order that forced backers of a anti-gasoline-tax initiative to report the online-air activities of two Seattle talk-show hosts as in-kind campaign contributions in 2005.

All nine justices agreed that the lower court ruling by Thurston County Superior Court Judge Chris Wickham was incorrect on free-speech grounds.

They issued two separate decisions Thursday to explain their views in the case, which dealt with KVI Radio hosts John Carlson and Kirby Wilbur.

The backers of Initiative 912, who had sought unsuccessfully to overturn the gasoline-tax increases, now are considering whether to pursue a civil-rights claim for damages against the prosecutors in San Juan County, Seattle and other jurisdictions in the case.

“This is a vindication of free speech and freedom of the press, and a direct and clear repudiation of the use of Washington’s campaign finance laws to intimidate and harass media voices with which the government disagrees,” William Maurer, executive director of the Institute for Justice’s Washington Chapter, said in a statement e-mailed to reporters.

To understand the fuss you have to go back to 2005, before I had even launched my blog.  This section sums it up fairly well.

San Juan County Prosecutor Randall Gaylord, who led efforts to treat the on-air commentary as in-kind political contributions, could not be reached for comment. But Gaylord said in a statement sent to news organizations that the Supreme Court altered the rules for talk-show hosts in campaigns by requiring a political committee to own the radio station before drawing the line between advocacy and campaigning.

The case dealt with the No New Gas Tax group’s Initiative 912, which was aimed at repealing the gasoline-tax portion of a transportation-financing package approved by the Legislature in 2005. Carlson and Wilbur both advocated strongly for the repeal, urging listeners to sign petitions and donate money.

In written comments he issued in October 2005, Wickham made clear that his original ruling was based on a finding that Wilbur and Carlson at least initially “were principals in the campaign” as well as “the principal organizers of the campaign” to repeal the gas tax. His ruling dealt with those early solicitations.

Brian Maloney summed it up here as well.

Amazingly, the Seattle PI ran Daily editorials telling (scaring) people why they needed the gas tax but no one sued them.

The case stunk to high heaven.  One of the law firms backing the gas tax against Wilbur and Carlson was heavily invested in it passing, making this the biggest cesspool of conflicting interest I had ever seen at that time.

Read about that here:

http://seattlepi.nwsource.com/local/235936_gastax10.html

But David Snyder, one of the lawyers for the local governments that filed the suit, said Carlson's and Wilbur's actions had to be reported as in-kind contributions because the two "were part of the campaign" in that they used their talk shows to promote it and ask listeners to donate to it.

The anti-I-912 campaign, Keep Washington Rolling, cited comments made by Wilbur and Carlson on KVI to argue that they were campaign functionaries. Wilbur, for example, purportedly said on the air May 4, "John and I have been meeting with a number of people. … We, a group of people, have established an organization known as No New Gas Tax. We have a Web site, nonewgastax.com."

Snyder's law firm, Foster, Pepper & Shefelman of Seattle, filed the suit on behalf of San Juan County and the cities of Seattle, Kent and Auburn.

Maurer said the firm has a "substantial self-interest" in the suit's outcome because it not only is active in the anti-I-912 campaign but also is a bond counsel for the state. He said passage of the initiative would cause it to be lose out on fees for work done on bonds that would be issued based on gas-tax revenue.

"There is not a conflict of interest," Snyder replied. "We do bond work and we're a full service law firm that does all kinds of things." He said no conflict exists between its clients in the I-912 case and its other clients.

See below, the Court disagreed.

At any rate, the US Constitution prevailed.

Justice Barbara Madsen rejected that reasoning in the majority opinion, signed by six other justices. She said Carlson and Wilbur’s on-air advocacy fell within the legal exemption for the media company they work for.

In the minority opinion, Justice Jim Johnson said the legal action against Carlson and Wilbur was “an example of abusive prosecution by several local governments” and interferes with constitutional rights of free speech. Johnson and Justice Richard Sanders also said the campaign should receive reimbursement for legal fees in the case.

The Supreme Court decision now sends the case back to Thurston County, finding that Wickham also was incorrect in deciding the No New Gas Tax group did not have a counterclaim against the county and cities. The high court did uphold one piece of Wickham’s ruling: his denial of attorney fees to the prosecutors.

Brett Bader, the spokesman for the I-912 campaign, said he and others were consulting their legal advisers on Thursday. He said pursuing legal fees is less important than carrying on the next phase of the case, which could include a lawsuit against San Juan County and the cities of Seattle, Auburn and Kent for violating the campaign’s constitutional rights.

In fact the ruling actually is a harsh denouncement of the anti 912 actions.  Read the rulings here:  http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent

Here are some tasty excerpts from the concurring minority opinion:

I concur with the majority's holding construing the statute in a constitutional manner to not apply to the political speech of the defendants.  I  write separately to emphasize that the contrary positions of the Municipalities  and court below resulted in infringing constitutional rights.  Thus, the majority  properly reverses and remands for further proceedings.  At the least, this remand requires that NNGT receive reasonable attorney fees and trial costs.

The Municipalities involved expected millions of dollars from increased tax revenue if Initiative 912 (I-912) failed to qualify for the ballot. The private law firm would potentially derive financial benefit from its role as one state bond counsel and volunteered to help litigate against NNGT "on behalf of the State of Washington."

The full effect of this injunction's characterization of talk show commentary as in-kind contribution is evident when RCW 42.17.105(8) is also considered.  That statute states in relevant part any in-kind campaign contribution in excess of $5,000, within 21 days of
the general election, is a violation of the Fair Campaign Practices Act (FCPA). Id. Thus, the injunction was "chilling" of speech because of the substantial risk that KVI on-air commentary regarding NNGT, in the three weeks preceding the general election, would be a donation in excess of the $5,000 cap, thereby incurring financial sanctions.

Granting NNGT complete reasonable attorney fees and trial costs is appropriate and required here.  This may serve to deter future state actors from using their authority to act similarly to deprive individuals of constitutional rights of speech (or initiative).

The voters had their say on I-912, as is appropriate under our constitution.  The legal action and injunction below meant the advocates on one side of their issue were denied their rights to speak before the voters decided.  I concur with the majority in reversing the rulings below and remanding for appropriate relief.

Congratulation to Kirby Wilbur and John Carlson and the NNGT team for not giving up in the face of harsh persecution.

Free speech won today.