One could argue that if Tim Eyman hadn't gone looking for experienced legal counsel to draft his 2001 property tax measure it could have survived Supreme Court review. Instead, Initiative 747 was thrown out on a 5-4 vote this morning.

There are a couple of names you may not recognize signed to the majority opinion. Stephen Brown and Teresa Kulik signed as justice pro tems, meaning substitute judges. The two are judges on the Court of Appeals Division III in Spokane. Brown was filling in for Justice Mary Fairhurst and Kulik for Justice James Johnson. And both pro tems voted with the majority, giving the edge to Bobbe Bridge's argument that voters were deceived by the initiative.

Johnson, then a veteran appellate attorney, drafted I-747 for Eyman. Eyman's earlier tax measure, I-722, was already being challenged in court and he wanted to find someone who could craft an initiative that would withstand scrutiny from the state's high court.

Johnson gave up his practice after he was elected to the Supreme Court in 2004. As Eyman's former attorney, Johnson recused himself from hearing the I-747 case. If Eyman hadn't hired Johnson, the justice would have participated in the case decided today. I have little question he would have ruled with his fellow conservative, Richard Sanders, and signed the dissent. That would have made five votes to uphold I-747. I'm not yet sure why Fairhurst was recused from the case. But my bet is she would have voted as her pro tem did and joined the majority.

Pro tems are selected from among retired and active court of appeals judges. According to court rules, names are drawn at random and the judges are asked if they can serve, with the most senior judges getting preference for the assignments.

GOP gubernatorial candidate Dino Rossi says he raised more than $463,300 in the last six days of October, and $110,000 in the first two days of this month. Rossi announced his candidacy Oct. 25 and the campaign just put out a press release announcing the figures, though official reports have not yet been filed with the Public Disclosure Commission. They are due Saturday.

The Rossi campaign said that the $463,300 is three and a half times more than he had raised by the end of October 2003 in the early days of his first run for governor. Campaign spokeswoman Jill Strait said the campaign has already spent about $42,000 so far. But that is not a final number for last month and could change by the time reports are filed Saturday.

Gov. Christine Gregoire has raised about $3.25 million so far in her (officially unannounced) re-election campaign. October fundraising reports filed so far show Gregoire raised $321,000 last month. While at least some fundraising reports have been filed, reports showing the monthly total and the amount of spending have not. Last month the Gregoire campaign was showing about $2 million cash on hand.

The UW's Washington Poll says Democratic Gov. Christine Gregoire and Republican Dino Rossi start out in a very close race. The race starts within the margin of error.

The state Supreme Court this morning ruled that the voter-approved property tax limit in Initiative 747 is unconstitutional. The court ruled 5-4 to throw out the Tim Eyman-sponsored state and local property tax limit. The majority said:

I-747's challengers argue that the initiative failed to accurately set forth the law that it sought to amend in violation of article II, section 37 because the text of the initiative claimed to reduce the general property tax levy limit from two percent to one percent, but in reality it reduced the limit from six percent to one percent. We agree.

The initiative was passed overwhelmingly in 2001. It limited increases state and local property tax collections to 1 percent a year, unless voters approved a higher increase.

King County Superior Court Judge Mary Roberts ruled it unconstitutional in 2006, saying voters were deceived, or at least confused. In 2000, voters approved another Eyman initiative, I-722, which capped increases at 2 percent. Roberts said that voters believed they were changing the limit only from 2 percent increases a year to 1 percent.

But by the time I-747 was on the ballot, the Supreme Court had thrown out I-722 as unconstitutional. As Ralph Thomas wrote in May when the Supreme Court heard arguments on the I-747 case:

Roberts said voters were not aware that they were actually considering a much more dramatic limit.

The coalition that sued to overturn I-747, including Whitman County and groups that advocate for the poor, argued in a brief to the Supreme Court that voters had been "hoodwinked into passing I-747."

"Every citizen has the right to accurate information on the day they vote," attorney Knoll Lowney told the court Tuesday. "Voters are not second-class lawmakers."

The state constitution requires that initiatives which amend existing laws include the full text of what's being amended. Because I-747 was drafted while I-722 was still in effect, it included the language of the 2 percent limit. But by election day 2001, I-722 had been tossed out by the court and that law had reverted to the pre-2000 version.

The majority opinion, written by Justice Bobbe Bridge, says

Here, at the time of the popular vote, the text of I-747 did not accurately set forth the law that the initiative sought to amend. Voters' Pamphlet at 15. The text of I-747 led voters to believe that I-747 would generally reduce the property tax increase limit from two percent to one percent. Id. In fact, the initiative generally reduced the property tax increase limit from six percent to one percent.

Bridge said that's true even though voters could have gotten the full story from reading the voter's pamphlet.

While complete review of the attorney general's explanatory statement in the Voters' Pamphlet might have explained the relationship between pre-I-722 law and the changes proposed by I-747, article II, section 37 does not simply require that notice of an amendatory initiative's impact on existing law be somehow available to voters. "[T]he act revised or the section amended" must be "set forth at full length." Wash. Const. art. II, § 37. Nothing in the plain language of article II, section 37 or in our case law interpreting it suggests that information in the Voters' Pamphlet can cure the type of textual violation of article II, section 37 that occurred here, where the initiative's inaccuracy strikes at the substance of the amendment's impact. ...

...

At best, review of the entire Voters' Pamphlet reveals ambiguity as to the effect that I-747 would have on existing law. ... We, therefore, conclude that the Voters' Pamphlet does not cure the defect in the text of I-747.

The ruling came in a 5-4 decision. The majority was signed by Barbara Madsen, Susan Owens, and two pro-tem judges, Stephen Brown and Teresa Kulik. Justices Jim Johnson and Mary Fairhurst did not participate.

The dissent was written by Justice Charles Johnson and signed by Chief Justice Gerry Alexander and justices Richard Sanders and Tom Chambers. Johnson says the majority doesn't give voters enough credit.

No reasonable argument can be sustained that voters were in any way misled or confused by the effect of I-747, which expressly and was specifically aimed at lowering the tax growth to one percent. The majority seems to suggest that the voters are unable to think or read for themselves, when in fact our democratic process is based on the assumption that voters do in fact read and understand the impact of their votes.

Johnson wrote that there are cases where the constitutional provisions have not been met because a law was "confusing, vague, or not contained in the initiative itself." But he says that wasn't the case with I-747.

The title of I-747 is crystal clear, and the body specifies what laws are being amended and the effect of the amendment. If a voter were to simply read the text of the initiative, the voter would have understood that I-747 reduced the property tax levy limit to one percent.

This is not misleading.

Eyman, who had a victory at the polls Tuesday with a measure designed to limit state tax increases, had predicted this morning that the court would rule in his favor. But, he said in an e-mail statment, if he was wrong and I-747 was tossed out

then local governments will go on a reckless rampage and radically jack up property taxes. It'll be like pigs at the trough.

Democrat Bill Sherman called County Prosecutor Dan Satterberg yesterday, conceded the race and congratulated the Republican. Sherman issued a statement this morning that included this:

"Dan ran a smart and effective campaign, and his message of carrying on the legacy of Norm Maleng clearly resonated with voters. I have said all along that he is a decent man, and I still believe that to be the case. I wish him well as the newly elected King County prosecutor, and I am sure he will continue to do a good job filling the shoes of the beloved and respected Maleng, whose tragic passing affected all of us deeply.

"Despite the final outcome, I am proud of the race we have run. Through the campaign I strived to be honest and forthcoming about who I am, what I believe and what I had to offer the people of King County. In the end it was up to the voters to decide, and they chose to go in a different direction. I respect that decision."

Boeing's tanker scandal is featured in a new TV ad from Sen. John McCain's presidential campaign. McCain led the fight to stop Boeing from getting a $23 million Air Force contract after questions were raised about conflict of interests between the aircraft company and a Pentagon official.

McCain's efforts sparked an investigation which resulted in jail sentences for Boeing's chief financial officer and a top procurement official with the Air Force. The campaign calls the ad "Guts." You can watch it here.

ANNCR: When special interests and bureaucrats conspired to spend 30 billion of your tax dollars on a defense contract boondoggle, everyone looked the other way.

Everyone except one man.

One man has the experience to know it was wrong and the courage to stop it.
Corruption exposed.

Billions saved.

Wrongdoers jailed.

All the candidates for president say they'll stop wasteful spending.

One man has actually done it.

JOHN MCCAIN: I'll stop wasteful spending by Congress. Restore trust in government.

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