Archives for June 2014

What the headline says:

The Washington Supreme Court on Thursday ordered lawmakers to explain why they haven’t followed its orders to fix the way Washington pays for public education.

The court has ordered the state to appear before it on Sept. 3 and show the court how it has followed its orders in the 2012 McCleary decision or face contempt.

Of course, the legislature is in contempt of the court’s order on McCleary, but the court doesn’t really have any good options to enforce it. Of the remedies Chief Justice Barbara Madsen lists in her rather terse order summoning “the State” to appear before the court at a September 3 “show cause hearing,” only the first is appealing, none would be effective, and several would realize the Republican wet dream of using McCleary as an opportunity to starve the rest of state government.

1. Imposing monetary or other contempt sanctions;
2. Prohibiting expenditures on certain other matters until the Court’s constitutional ruling is complied with;
3. Ordering the legislature to pass legislation to fund specific amounts or remedies;
4. Ordering the sale of State property to fund constitutional compliance;
5. Invalidating education funding cuts to the budget;
6. Prohibiting any funding of an unconstitutional education system; and
7. Any other appropriate relief.

I’m all for imposing contempt sanctions. Throw the house and senate leadership in jail, if you can. That at least would be a spectacle on a scale worthy of the impending crisis. But simply forcing the state to spend money it doesn’t have would only pull billions from social services, higher education, and other critical programs, while selling state property in order to fund current expenses is nothing less than one generation ripping off all those generations that precede or succeed it.

No, the only solution is more revenue. And if the court can’t effectively order the legislature to raise taxes (or eliminate tax exemptions), then there’s no solving this crisis.

A few months ago I asked if state Democrats were prepared for the impending McCleary disaster? Of course, it was a rhetorical question. The answer is clearly “No.”

The laws that the legislature passed in the last session are now officially on the books. Seattleish has some highlights. Included are the ban on tanning for teens and the WA DREAM Act (that, yes I know the final bill was called something else). It seems pretty small bore compared to the problems we face. And give the makeup of the last legislature, it is. But it is mostly to the good.

The International Franchise Association didn’t just file one of the most hilarious lawsuits ever in their futile quest to overturn Seattle’s new $15 minimum wage ordinance, they also created a pathetically lazy video to support it! As the folks at Working Washington quickly discovered, every single person shown is taken directly from the popular stock footage library, Pond5:

1. Young asian woman smiling face
2. Young hispanic man smiling at camera
3. Portrait Of Young Happy Handsome Man In Glasses
4. Friendly Female Barista In A Coffee Shop Serving Customers
5. Young Pretty Woman Working As Florist In Shop And Smiling (Note: they color-adjusted the apron so it’s Starbucks green!)
6. Attractive Female Business Owner On The Phone Behind The Counter Of Her Shop
7. African American Woman Close Looks Up Smiles Into Camera
8. Man Looking At Seattle Skyline

That’s pretty much a laundry list of politically correct inclusiveness picked straight from the Pond5 catalog. Not a single actual real business owner or worker in the bunch.

So how much did the IFA spend to hack together a video like this? My guess is a lot. One of the signers on yesterday’s absurdly crappy complaint was former Bush Administration Solicitor General Paul D. Clement, who reportedly charges more than $1,000 an hour for his service. So no doubt the IFA paid top dollar for this crappy video too.

Which raises the question: If America’s franchises can afford to pay $1,000 an hour for crap like this, why can’t they afford to pay $15 an hour to their own employees?

– With how often I talk about how gross coal trains are, we can also remember that oil trains are also gross, and maybe we should have better disclosure.

– What the everloving fuck, Pat Robertson?

– I’m not as big on calling out a history of not voting by candidates. Policy ought to trump that. If the candidates are similar, it’s maybe a tiebreaker. But a campaign making excuses in a way that makes it seem they don’t understand they’re in a vote by mail state is maybe worse.

– Eric Cantor got what he deserved: A political fraud’s stunning demise

– Oh hey, the Backbone Campaign are having a fundraiser. It looks like fun.

The Washington DC based International Franchise Association has filed its promised lawsuit challenging Seattle’s $15 minimum wage ordinance, and while I’m not a lawyer, I have to say that in my expert opinion, much of the 34-page complaint (pdf) is downright laughable.

For example, Count IV, which preposterously alleges that the ordinance is preempted by the Lanham Act, the primary federal statute protecting trademarks, because it interferes with a trademark holder’s “right to control the quality of the goods or the services sold under its trademark.” Or Count I, which clearly contradicts the plaintiffs’ primary claim—that franchises should be treated like any other small, locally owned business—by arguing that to do otherwise would discriminate against interstate commerce. Or perhaps most hilariously, Count VIII, which alleges that the ordinance violates the First Amendment, because its higher labor costs would reduce the money available to spend on the franchisees’ constitutionally protected commercial speech:

[T]he Ordinance will curtail franchisee commercial speech in at least three important respects. First, by increasing the labor costs of franchisees, the Ordinance will reduce the ability of franchisees to dedicate funding to the promotion of their businesses and brands. Second, the increased labor costs the Ordinance mandates may cause some franchisees to shut their doors, reducing the amount of relevant commercial speech they engage in to zero. Third, and relatedly, the Ordinance will likely cause potential franchisees to forgo purchasing a franchise because of the associated higher operation costs, again eliminating all associated speech.

“That’s crazy talk,” says attorney Dmitri Iglitzin, a labor and employment lawyer who represents groups defending SeaTac’s $15 minimum wage ordinance. Iglitzin says that the First Amendment claim actually surprised him. Indeed, it’s so blatantly frivolous, he suggests, that it could even end up pissing off the court. “I don’t just throw everything I can imagine into a claim and hope that it sticks,” says Iglitzin about his own legal strategy.

Iglitzin doesn’t think much of the complaint’s other seven counts either, which include vague appeals to the Commerce Clause, the Equal Protection Clause, and the state constitutional prohibition on granting “rights and immunities” to specific corporations. Iglitzin characterizes the remarkably nonspecific alleged violation of Washington State corporation law as “equally nonsensical.” When asked if there was anything in the complaint that gave him pause,  Iglitzin said: “There’s really not.”

Iglitzin did say he would take a deeper look at Count V, which claims that the ordinance’s separate schedules for employees receiving health benefits is preempted by the federal Employee Retirement Income Security Act (ERISA). He doesn’t believe the claim has merit, but “ERISA is a complicated area of the law,” he concedes.

“If I saw a lawsuit that was just ERISA, I might have thought that maybe they saw something that I didn’t see,” says Iglitzin. But overall, “it seems like a pretty frivolous lawsuit to me.”

I’m not an attorney, but I’ve seen enough of these things to fashion an informed opinion. And I have to agree. It’s frivolous. I mean, how can anyone take seriously a legal document that authoritatively cites a Seattle Times editorial?

In fact, much of the complaint reads more like it was drafted by PR consultants than lawyers, with nearly a quarter of its pages devoted to detailing the alleged woes of the named plaintiffs, and how the Seattle ordinance unfairly discriminates against their franchise businesses. But unfortunately for the plaintiffs, there’s nothing illegal, preempted, or unconstitutional about these sorts of distinctions.

Under Seattle’s ordinance, “small” businesses—those with 500 or fewer employees—phase in to $15 slower than larger businesses: 7 to 10 years versus 3 to 4. The bone of legal contention in this lawsuit is the provision that counts the number of employees based on the entire franchise network, rather than the number employed at single franchise store. But whether or not this is unfair or disadvantageous to franchise owners, it is not illegal.

Government regulations discriminate between different businesses all the time—based on size, industry, location, and whatever. In fact Washington State already has an entire chapter of the RCW devoted specifically to regulating franchises! There’s nothing novel about these sorts of regulatory distinctions. The only possible legal question, Iglitzin insists, is whether these distinctions are rational.

“There is a reason why you open a Burger King franchise rather than a Goldy’s Hamburgers,” explains Iglitzin, “and that is because there is value in being part of a larger network.” The franchiser provides branding and advertising, legal and administrative support, even payroll and human resource guidelines. Franchisees benefit from preexisting good will, and franchisers have both the incentive and the ability to assist franchisees in adapting to higher labor costs.

The legal test for both the “equal protection” and the “rights and immunities” claims is “is there a rational argument for treating franchisees differently?” says Iglitzin. And his answer is an emphatic yes.

“It is self-evident that franchisees are different from other employers,” says Iglitizin. And so it is perfectly legal to write regulations that treat franchisees differently.

The Franchise Association’s complaint was filed in the US District Court of Western Washington. And FYI, there is not a single word in its 34 pages challenging the minimum wage itself, only the regulatory distinction between franchisees and other businesses. So yes, the fast food industry has capitulated on $15.

UPDATE: No, I’m not an attorney. But David Ziff is. And he also thinks that there’s “not much merit” in the complaint, and for a lot of the same reasons.

Seattle may have been the first city in the nation to approve a $15 minimum wage, but San Francisco may be the first city to get there, at least for all its workers. The dominos continue to fall:

San Francisco voters will decide in November whether to raise the city’s minimum wage to $15 an hour in 2018.

The mayor, city supervisors and business and labor leaders announced on Tuesday that they had reached a deal on a ballot measure for the increase.

“I can’t tell you how happy I am. San Francisco is yet again setting the bar on workers’ rights,” said Supervisor Jane Kim, who helped broker the deal. “All San Francisco employers will be paying $15 an hour by 2018. There will be no tip credit, no health care credit. These are pure wages workers will be bringing home to their families.”

[…] The city’s current minimum wage is $10.74 an hour. Under the ballot measure that will go before voters, it would increase to $12.25 next May, then to $13 in July 2016 and $1 each year after that until it reaches $15 in 2018.

Under Seattle’s recently passed ordinance, minimum wage workers at companies with more than 500 FTEs will earn $15 an hour as soon as 2017, 2018 for workers who receive benefits. But workers at companies with 500 or fewer FTEs won’t fully phase in to an inflation-adjusted equivalent wage until 2025. That means that when all San Francisco workers will be earning a minimum of $15 in 2018, tens of thousands of Seattle workers will still be earning as little as $11.50 an hour. On the other hand, since Seattle’s minimum wage is pegged to $15 in 2017 dollars, rather than 2018 in San Francisco, Seattle’s inflation-adjusted minimum wage will ultimately be a little bit higher.

Personally, I much prefer San Francisco’s more straight forward four-year phase-in than the convoluted multi-schedule phase-in Seattle settled on. But either would be a huge victory for low-wage workers.

But of course, the bigger story is that thanks in part to the history-making effort here, the fight for $15 is on the verge of victory in another American city. On to the next battle.

Over at my alma mater Slog, there’s a guest post up by Dave Hoover, a Colorado police sergeant and uncle of Aurora theater shooting victim A.J. Boik, urging support for Washington’s Initiative 594:

In Colorado, we responded to the unacceptable reality of gun violence by requiring background checks on private sales. It’s the best thing we could have done to honor the lives of our loved ones. Washington has an incredible opportunity this year to prevent future acts of gun violence by passing Initiative 594’s common sense background checks.

Since 2013, Colorado’s background checks on private sales have worked well for everyone in our community. Ninety-eight percent of the over 11,000 private sale background checks performed have been approved while 227 prohibited purchasers were stopped from purchasing firearms. I have personally used the system twice: once to purchase firearms and once to sell them. It’s a simple and convenient system that keeps firearms out of the hands of those who shouldn’t have them—felons, abusers, and the dangerously mentally ill.

It’s a moving and thoughtful piece. Read the whole thing.

(Presumably up next on Slog, following the equal time doctrine they adopted on the minimum wage debate in the immediate wake of my departure, will be an anti-594 guest post from a potentially disenfranchised mass shooter.)

Holy fuck, Virginia Republicans are crazy:

– The Northgate bike/walk bridge designs are stunning, could be a neighborhood icon

– Are you as excited as me about the new parking rates in Seattle? (“excited as me” means vaguely interested, and glad that we’re using data)

– Are you as excited as me for a Broadway Streetcar design open house? (I’m genuinely somewhat excited about that)

– Seattle shouldn’t settle for LGBT-friendliest city in America. What about LGBT-friendliest city in the universe?

– Yes, I realize that was 4 Seattle specific links in a row. Here’s something about Spokane: Looks like it’s Street Music Week in Spokane.

– Now that Obama can release prisoners from Gitmo, I guess he can release prisoners from Gitmo.

– I could stare at these grocery store maps for hours.

One of the cruel ironies of the minimum wage battle is that some of the people most responsible for winning a $15 minimum wage aren’t benefiting from the victory. It is fair to argue that without the SeaTac $15 minimum wage initiative helping to define the terms of the debate, Kshama Sawant might never have won her $15-fueled run for Seattle city council. And had not both the SeaTac initiative and Sawant won in November, the mayor and the council would not have felt nearly as much pressure to pass a $15 ordinance so quickly, if at all.

Yet thanks to a post-election ruling from a King County Superior Court judge, thousands of Sea-Tac Airport workers have not been delivered the wages and workplace protections the initiative promised.

Plaintiffs argued, and the judge agreed, that RCW 14.08.330 grants the port “exclusive jurisdiction” over airport operations. And the plain language of that statute certainly appears to support that interpretation. But an amicus brief (pdf) filed by Washington State Attorney General Bob Ferguson says not so fast.

Ferguson argues that the apparently plain language of RCW 14.08.330 must be interpreted in conjunction with conflicting statutes, specifically RCW 49.46.120, which allows local minimum wage laws that are more favorable to workers to supersede state and federal minimum wage laws. Ferguson’s argument is a clever one. Yes, RCW 14.08.330 grants the port “exclusive jurisdiction,” but only “subject to federal and state laws, rules, and regulations.” RCW 49.46.120 is a state law, and one that grants minimum wage jurisdiction to local governments. Connect the dots, reasons Ferguson, and RCW 14.08.330 grants minimum wage jurisdiction to the City of SeaTac via RCW 49.46.120.

Ferguson argues that since the statutes conflict, “the Court has to look to the legislative intent in passing RCW 14.08.330 to discern the precise scope of the Port’s ‘exclusive jurisdiction:'”

Here, this Court has already explained the Legislature’s intent in enacting RCW 14.08.330. Shortly after the law passed, this Court held: “The effect of this section, when read in the light of the entire Revised Airports Act, is merely to preclude [other local governments] from interfering with respect to the operation of the Seattle-Tacoma airport.” King Cnty. v. Port of Seattle, 37 Wn.2d 338, 348, 223 P.2d 834 4 (1950).

Under Ferguson’s reading, unless SeaTac’s minimum wage ordinance interferes with the operation of the airport, it is permissible. Which brings us to Ferguson’s second—and I think more persuasive—argument: that without jurisdiction there can be no “exclusive” jurisdiction.

For years, port commissioners had insisted that they had no legal authority to set a minimum wage at the airport, so sorry, there was nothing they could do about the horrendous wages and job conditions of airport workers. It was only after the SeaTac initiative passed that the port reversed itself, not only arguing that it, not the City of SeaTac, had jurisdiction over minimum wages at the airport, but joining Alaska Airlines and the other plaintiffs in arguing that such jurisdiction needn’t be considered at all.

The judge agreed, ruling that RCW 14.08.330 gave the port exclusive jurisdiction while leaving unsettled whether the port had the legal authority to set a minimum wage.

Citing both prior case law and, well, logic, Ferguson calls bullshit on that:

If the Port has no jurisdiction over such wages, it cannot as a matter of logic have exclusive jurisdiction over them. And as a matter of legislative intent, if the Legislature gave the Port no authority over this topic, it is hard to imagine that the Legislature intended to oust the authority of other local governments recognized in RCW 49.46.120.

[…] In interpreting the Port’s powers, it is important to remember that: “The Port, as a municipal corporation, is limited in its powers to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. If there is a doubt as to whether the power is granted, it must be denied.” Port of Seattle v. Washington Utils. & Transp. Comm’n 92 Wn.2d 789, 597 P.2d 383 (1979).

In essence, Ferguson argues that for the court to rule the port has “exclusive” jurisdiction over setting a minimum wage at the airport, the court must first rule that the port has any jurisdiction over setting a minimum wage at all. And nothing in state statute explicitly grants the port such power. Therefore, says Ferguson, the limited scope of the port’s “exclusive jurisdiction” leaves jurisdiction over the minimum wage in the hands of the City of SeaTac.

Clever, clever.

Of course, I’ve only summarized the major points of Ferguson’s 17-page brief. There’s a lot more to it. So read it for yourself.

As for the plaintiffs, their reply (pdf) is perhaps telling:

Neither of the arguments made by the Attorney General was raised by any party to this appeal.  This Court does not consider arguments that are raised only by amici curiae.

The plaintiffs go on to insist that the two statutes should not be read together, and that the scope of the port’s employment regulation authority is not at issue in the appeal. It is largely a procedural defense against some very compelling arguments.

So, how will the court rule? Initiative sponsors seem pretty confident that they will prevail on appeal. Put a gun to my head and I’d have to agree. But this isn’t a slam dunk case.

Oral arguments will be held before the court on June 26, with a decision expected later this year.

By a 5-4 vote yesterday afternoon, the King County Council voted to adopt a Metro funding plan that would implement the first round of scheduled cuts in September, but would defer adopting further cuts in the hope that increased sales tax revenues, higher fares, transfers from capital funds, and additional savings could close the gap. King County Executive Dow Constantine immediately vetoed the plan:

“We need a reliable way to pay for bus service – but until then, we shouldn’t spend money we don’t have, we shouldn’t use one-time money to pay ongoing expenses, and decisions to save or cut service should be based on objective criteria and data, not on politics,” said Executive Constantine. “This ordinance falls short on all counts. I must respectfully veto this legislation, and ask that the Council keep working on a solution that is responsible and sustainable.”

Council member Rod Dembowski spearheaded the plan along with the four suburban Republicans, and no doubt his intentions are pure. His objective is to avoid unnecessary pain. The problem is, without substantial additional revenue, much of the pain will be unavoidable. And by putting off the decision as long as possible, we risk lulling voters and Metro riders into a state of complacency.

The anti-Prop 1 folks like to promote this meme that new revenue is unnecessary—that if Metro just tightens its belt a bit, everything will be okay. For example, yesterday the Seattle Times editorial board urged Metro to “begin the hard work of reforming the agency,” once again ignoring the fact that in response to collapsing revenue and a state performance audit, Metro has implemented substantial reforms that achieved hundreds of millions of dollars in long term cost savings.

The Demobowski plan, unfortunately, just feeds into this fiction that Metro has a spending problem, not a revenue one.

The other Democrats on the council proposed an alternative plan that would have adopted the proposed cuts, phased in over the next year and a half or so, but would have also given Constantine the flexibility to delay cuts if revenues rebound or cost savings materialize. That seems like a more responsible approach to long term planning, and a more realistic presentation to the public of what most likely lies in store.

Tuesday comes with a big bunch of primary or run-off elections in Arkansas, Maine, Nevada, North Dakota, South Carolina and Virginia. The races seem less competitive and consequential than the pile we had last week, but there may be some interesting surprises.

In any case, join us tonight for an evening of electoral politics over a pint at the Seattle Chapter of Drinking Liberally.

We meet tonight and every Tuesday at the Roanoke Park Place Tavern, 2409 10th Ave E, Seattle. The starting time is 8:00 pm, but some folks show up before that for dinner.

Can’t make it to Seattle? Check out another Washington state chapter of Drinking Liberally over the next week. The Tri-Cities, Vancouver, WA, and Redmond chapters also meet on Tuesday. On Wednesday, the Bellingham chapter meets. The Bremerton chapter meets on Thursday. And next Monday, the Aberdeen, Yakima and Olympia chapters meet.

With 207 chapters of Living Liberally, including nineteen in Washington state, four in Oregon, and three more in Idaho, chances are excellent there’s a chapter meeting somewhere near you.

A Lee County, Florida man shot and killed his wife and three daughters—ages 10, 6, and 2—over the weekend, before turning the gun on himself. Sheriff Mike Scott called it the single-largest mass shooting in Lee County history.

“This is everyday USA behind me,” Scott said on Sunday as he was standing front of the crime scene. “Something snapped, something went terribly wrong. And we’ll never know the answer to why.”

No, probably not. But we do know the answer how: He had a gun. Whatever it was that set the shooter off—alcohol, mental illness, a domestic dispute—it was the immediate availability of the gun (which he no doubt kept to protect his family) that made his awful impulse so deadly.

To emphasize that point, a neighbor, Karen Downare, is quoted remembering the shooter as a “kind, gentle, loving dad.”

“If you would have told me that it was possible for him to ever do this, I would have told you you’re a liar,” she insisted. “That it was not possible for that man to do that to his family.”

Tragically, yes, it was possible, Karen. With a gun.

 

Various parties representing Seattle’s taxi and for-hire industry will be filing suit today in King County Superior Court seeking to block a referendum submitted by the so-called “ride-share” companies Uber, Lyft, and Sidecar. The referendum seeks to overturn Seattle’s recently passed ordinance that would legalize these app-based “transportation network companies,” but subject them to regulation and caps. The taxi industry argues that the referendum is outside the scope of the initiative process.

And they have a pretty damn strong case.

To win the relief they seek, the plaintiffs need to prevail on two points: that pre-election review of local initiatives and referenda is both proper and ripe, and that this referendum is outside the scope of local initiative powers.

The first point is a no-brainer. As Tim Eyman knows, local initiatives are blocked all the time. And since simply certifying the TNC’s referendum for the ballot blocks the ordinance from going into effect, there is no question about ripeness. Further, there is plenty of legal precedent for challenging a measure on scope once the ballot title has been assigned. Ripeness is an easy win for the plaintiffs.

On the second point, the plaintiffs make two arguments, one stronger than the other. The first is that in granting authority directly to the council, the state legislature has superseded the people’s right of initiative. That was the argument that killed Eyman’s local red light camera initiatives. But in the red light camera case, that exclusive authority was granted explicitly to local legislative bodies, where as the plaintiffs in this case argue that the exclusive authority is implicit based on the sort of administrative powers granted. There is legal precedent for this sort of implicit exclusivity, but it’s not an open and shut case.

But the second argument is much stronger. Initiatives and referenda are limited to subjects that are legislative only, whereas the recently passed taxi and for-hire ordinance is clearly administrative, seeking to carry out policy already enacted by the legislature and the city. In Seattle Bldg. & Constr. Trades Council v. City of Seattle, the court laid out the following test:

The power to be exercised is legislative in its nature if it prescribes a new policy or plan, whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.

Both the state and the city had already adopted the policy to regulate the taxi and for-hire industry. Inspection, licensing, insurance, and caps are all currently in place. Indeed, under existing law, TNC operators are clearly defined as for-hire drivers. So there is little question that the recently passed ordinance seeks to administer existing policy rather than define a new one.

I’ve spent a lot of time covering such scope challenges (including that of my own “Horse’s Ass” initiative). The plaintiffs here have a very compelling case. If I had to bet money, I’d say the plaintiffs prevail.

And that’s something that Mayor Ed Murray and the city council should consider before caving in to TNC demands. Right now they are negotiating a compromise with the TNCs under threat of a referendum that would upend the entire ordinance. But if the referendum is outside the scope, then the TNCs have no leverage.

As for how the city should deal with the TNCs continued refusal to obey the law, well, Miami has an interesting solution….

 

– Steve Scher’s resignation from KUOW seems pretty quick, but I guess it had been in the works for a while.

– An open letter to the SPU gunman (h/t to a family member on Facebook)

– This opinion from the AG that people with felonies in other countries can’t get a gun permit in Washington seems like common sense (Daily O Link), but I’m not sure his opponent would have done the same.

– And speaking of an Attorney General,* Eric Holder looking at domestic terrorism is apparently a problem for some of the right wing. Because of course.

– Capitol Hill stand-off mercifully ends not-tragically and also fuck gun violence

– I’ve mentioned before that you should check out the Cascadia Exists tag over at Olympia Time, and you should also check out the editable version of the book that Emmett posted.

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