Voters should trust Washington attorney general to fight for $30 car tabs. AG office’s record speaks for itself

Can Washington state’s lawyers be trusted to vigorously defend the latest voter-approved $30 car-tab measure, even though their boss is a prominent Democratic politician who’s aligned with progressives who loathe the new law?

Should Attorney General Bob Ferguson remove himself and his staff from defending Initiative 976, since they’ve argued the opposite side of the car-tab debate in another case? And because Ferguson has also sued Tim Eyman, I-976 sponsor and perennial nuisance to Washington Democrats?

For Eyman and other I-976 proponents, the answer to the first question is an emphatic “no” and to the second a resounding “yes.” Led by Tacoma Sen. Steve O’Ban, they’re clamoring for the AG’s office to hire outside legal counsel to defend I-976.

Stirring up suspicion is surely helpful to Washington’s tax resistance, and shouting “conflict of interest!” no doubt fires up the troops. But years of evidence lead us to a different conclusion: The state’s lawyers are committed professionals with a solid record of upholding the will of the people.

If Eyman were to testify under oath, he’d have to begrudgingly agree. In an email to supporters in 2016, he praised AG staff for “methodically and meticulously” defending another of his initiatives, I-1366, adding that they “completely decimated every single one of opponents’ arguments.”

So quit trying to stoke public distrust and let the pros focus on the work that’s already underway. On Friday, the AG filed a brief opposing a request for preliminary injunction sought by those who want to block I-976 from going into effect.

Is it any surprise this hot potato landed in Ferguson’s lap? Two things were inevitable in the 2019 election: A majority of voters would favor I-976, and a legal challenge would follow quickly. It’s happened every time Eyman has floated a $30 car-tab proposition since 1999.

This time, nobody was more eager to rein in zooming vehicle excise taxes than Pierce County voters. The measure cruised to victory on the strength of 66-percent support here.

Within a week, a coalition of local governments led by Seattle and King County filed suit, saying the measure was unconstitutional, poorly drafted and misleading.

Indeed, I-976 exploited public animosity toward Sound Transit while disguising the brutal impact on roads, bridges and local transportation projects.

But it’s the AG’s sworn duty to defend the will of the majority expressed on Nov. 5, even if he doesn’t like it. It’s a duty that Ferguson was twice elected to carry out, and if he fails now, voters can deny him a third term next year.

That’s not good enough for O’Ban. In a Nov. 11 letter to Ferguson, the Republican senator claimed the AG has no option but to outsource all work on I-976, due to alleged conflicts in Ferguson’s office stemming from two other cases.

The first is an ongoing campaign-finance lawsuit against Eyman, filed by Ferguson in 2017 on behalf of the state Public Disclosure Commission;

The second is Sound Transit’s defense of a controversial formula that uses inflated vehicle values to figure excise taxes in Pierce, King and Snohomish counties. The AG’s office is a party to the case, joining Sound Transit in arguing the tax is constitutional. The Supreme Court is expected to rule soon.

“Washingtonians deserve to have their laws defended by unbiased legal advocates free of conflict,” O’Ban wrote.

Ferguson sent a response letter to O’Ban Friday. The gist of it: He doesn’t appreciate attacks on his employees, and he plans to keep the work in house.

“Perhaps if you were Attorney General, you would refuse to defend marriage equality or the Reproductive Privacy Act or other state laws enacted by the people of Washington that you oppose,” Ferguson wrote to O’Ban. “That is, however, not how my Office operates.”

Ouch.

Contracting with private lawyers is unusual for Ferguson — outside counsel is used in well under 1 percent of the AG’s cases — and typically happens only when the state lacks resources or expertise in a particular field.

The office has never hired outside attorneys to defend an initiative, as far as officials can recall. And why would it spend taxpayer money to do so now, when it has a crack team of staff lawyers with experience fighting for voter-adopted measures, including nine sponsored by Eyman?

What about an alleged anti-Eyman bias in Ferguson’s office? Even if you subscribe to O’Ban’s cynical perspective, the point is moot because the AG doesn’t represent Eyman; it represents the million-plus Washingtonians who voted for I-976. The initiative promoter himself told our Editorial Board last month that “it stopped being a Tim Eyman initiative” when 252,000 people signed petitions to put it on the ballot.

And what of the claim that the AG’s office compromises itself by handling conflicting car-tab cases? O’Ban ignores rules of professional conduct that allow state lawyers to litigate opposing sides of a debate while representing different agencies in different venues.

In other words, they’re capable of walking an ethical line and chewing gum at the same time.

Initiative 976 is on a slow march to the Supreme Court and will drive a wedge between Washingtonians for months to come. But if we can’t trust our state’s sworn attorneys to defend it with integrity, then we risk losing more than an election. We risk losing a little piece of the social contract that binds us together.