Live from Olympia: Supreme Court hears challenge to Tim Eyman's I-960
The Supreme Court just heard oral argument in Futurewise v. Reed, the legal challenge to invalidate Initiative 960 and strike it from the ballot. The court was in session for less than fifty minutes; it went into recess just before 2:20 PM. Knoll Lowney spoke for the plaintiffs, Deputy Solicitor General Jeffrey Even spoke on behalf of Secretary of State Sam Reed, the defendant.
The justices listened intently during the hearing as the attorneys outlined their arguments. Knoll spoke about the distinction between the issues of scope and unconstitutionality, which are key to this case because a question of constitutionality is not considered appropriate for pre-election review, but a scope challenge - determining whether a proposed initiative is within the people's legislative power - is appropriate.
As the State Supreme Court observed two years ago in Coppernoll v. Reed (this is from the headnotes in the opinion):
The Constitution is just a document. If initiatives can be proposed that alter what the Constitution says, the Constitution starts to become meaningless. That is what this case is about. Eyman wants to change rules that were established long ago because he wants to put a chokehold on representative democracy. He doesn't agree with the values of those who hold power (Governor Gregoire and the Democratic House and Senate) so he is attacking our very tradition of majority rule.
During the hearing Chief Justice Gerry Alexander and his colleagues asked Knoll Lowney about other cases in which statewide initiatives (as opposed to municipal measures) were stricken from the ballot prior to an election.
Knoll cited Goldstein v. Gregoire, noting that while the Supreme Court never considered the case, the Superior Court decision had the effect of barring I-831 from the ballot. (I-831 was our good friend David Goldstein's initiative to have Tim Eyman declared a horse's ass. It began as a joke, but before the Superior Court killed the initiative, several dozen thousand signatures were collected).
The state, of course, argued that preelection review is not appropriate and urged the Court not to enjoin Initiative 960. Even pointed out that the initiative would likely be challenged in court within days if it was passed by voters. But as Knoll said, the Court has an opportunity here to set a precedent that lets sponsors know that abuse of the initiative process will not be tolerated. That measures which are clearly not within the people's legislative power to enact will be filtered out.
The initiative and referendum process was set up with parameters and guidelines for a reason. It was and is intended to be an asset to our democracy. Citizens (sponsors) and legislators are under the same constraints in lawmaking: the Constitution may not be changed except as provided by the amendment process. If a law is proposed that ought to be an amendment instead, it is outside of the legislative power and should be invalidated.
The Supreme Court will probably rule within the next few days, given that county elections officials need to know whether to include I-960 on the ballots that are mailed out to voters. We hope the Court rules to void this improperly proposed amenment, disguised as an initiative, and sets a badly needed precedent.
UPDATE: The Court's website says opinions in this case "may be filed" tomorrow, Friday September 7th. Looks like the decision will be quick.
The justices listened intently during the hearing as the attorneys outlined their arguments. Knoll spoke about the distinction between the issues of scope and unconstitutionality, which are key to this case because a question of constitutionality is not considered appropriate for pre-election review, but a scope challenge - determining whether a proposed initiative is within the people's legislative power - is appropriate.
As the State Supreme Court observed two years ago in Coppernoll v. Reed (this is from the headnotes in the opinion):
An initiative does not exceed the scope of the state legislative power if (1) it is legislative in nature and (2) it will enact a law that is within the State's power to enact. In applying this test, a court looks to the fundamental and overriding purpose of the initiative and not the mere incidentals to the overriding purpose. Examples of initiatives that exceed the scope of the state legislative power are those that purport to enact a federal law and those that purport to amend the United States or Washington Constitution.Emphasis is mine. Because I-960 purports to amend the Washington State Constitution (the fundamental, organic laws of our republic) we have argued, and the plaintiffs are contending, that the Court should act to strike I-960 from the ballot and set an important precedent that protects the supreme law of our land.
The Constitution is just a document. If initiatives can be proposed that alter what the Constitution says, the Constitution starts to become meaningless. That is what this case is about. Eyman wants to change rules that were established long ago because he wants to put a chokehold on representative democracy. He doesn't agree with the values of those who hold power (Governor Gregoire and the Democratic House and Senate) so he is attacking our very tradition of majority rule.
During the hearing Chief Justice Gerry Alexander and his colleagues asked Knoll Lowney about other cases in which statewide initiatives (as opposed to municipal measures) were stricken from the ballot prior to an election.
Knoll cited Goldstein v. Gregoire, noting that while the Supreme Court never considered the case, the Superior Court decision had the effect of barring I-831 from the ballot. (I-831 was our good friend David Goldstein's initiative to have Tim Eyman declared a horse's ass. It began as a joke, but before the Superior Court killed the initiative, several dozen thousand signatures were collected).
The state, of course, argued that preelection review is not appropriate and urged the Court not to enjoin Initiative 960. Even pointed out that the initiative would likely be challenged in court within days if it was passed by voters. But as Knoll said, the Court has an opportunity here to set a precedent that lets sponsors know that abuse of the initiative process will not be tolerated. That measures which are clearly not within the people's legislative power to enact will be filtered out.
The initiative and referendum process was set up with parameters and guidelines for a reason. It was and is intended to be an asset to our democracy. Citizens (sponsors) and legislators are under the same constraints in lawmaking: the Constitution may not be changed except as provided by the amendment process. If a law is proposed that ought to be an amendment instead, it is outside of the legislative power and should be invalidated.
The Supreme Court will probably rule within the next few days, given that county elections officials need to know whether to include I-960 on the ballots that are mailed out to voters. We hope the Court rules to void this improperly proposed amenment, disguised as an initiative, and sets a badly needed precedent.
UPDATE: The Court's website says opinions in this case "may be filed" tomorrow, Friday September 7th. Looks like the decision will be quick.
