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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, March 12th, 2018

Publicity seeking Tim Eyman files lawsuit to undo the Legislature’s I-940 compromise

Refusing to leave well enough alone, disgraced initiative promoter Tim Eyman today filed a lawsuit against Secretary of State Kim Wyman in an attempt to nullify last week’s agreement between the Legislature, De-Escalate Washington, and representatives of the law enforcement community regarding I-940.

Initiative 940, filed last year, qualified as an initiative to the Legislature back in January. It sought to change the standard that prosecutors have to meet when considering when charges against a police officer for improper use of deadly force would be warranted. (Under the old standard, the state had to prove that a police officer acted without malice, which was basically impossible.)

The initiative also sought to require that law enforcement personnel undergo training for violence de-escalation and rendering of first aid.

After the measure qualified, lawmakers held discussions with proponents and opponents of the measure, and reached an accord to implement the initiative without sending it to a vote of the people this November.

Carrying out the accord required two steps:

  1. Enacting the compromise bill [ESHB 3003];
  2. Enacting the initiative itself, which the compromise bill supersedes.

Last Thursday, noting that some right wing Republicans had grumbled that this course of action was unconstitutional, I wrote:

We know there are some, particularly on the Republican side of the aisle, who believe that the adoption of ESHB 3003 amounts to an end-run around the Constitution. Some of the people making this argument have previously supported, — with gusto — Tim Eyman initiatives that were blatantly unconstitutional and later ruled to be unconstitutional, so we find their objections very curious indeed.

We would point out to those individuals that I-940 was in fact adopted by the Legislature without amendment as the Constitution requires, and that ESHB 3003 is a separate piece of legislation that was voted on independently.

Those who believe the Legislature acted unconstitutionally always have the freedom to file a lawsuit and bring the matter before our courts for interpretation. But given that ESHB 3003 is compromise legislation intended to avert the need for expensive pro and con campaigns this November across our state on a sensitive issue, leaving well enough alone would be in everyone’s best interest.

Tim Eyman, of course, doesn’t care about what is in everyone’s best interest; he only cares about himself and his initiative factory. There are few people in politics — aside from Donald Trump, Eyman’s idol — who are more self-centered than Eyman is. Hence, Eyman has filed this lawsuit and inserted himself into the middle of an issue that he hasn’t previously had anything to do with… at least not until now.

Filing the suit gave Eyman an excuse to call a press conference this morning at 10:30 AM in the Secretary of State’s office in Olympia (one of his favorite venues for holding forth) and get his name back into the news on his terms.

A secondary motive for Eyman is no doubt to bury any and all stories about Judge James Dixon’s ruling last Friday finding him in contempt of court in the State of Washington’s main campaign finance enforcement lawsuit against him.

Eyman’s suit seeks to force a public vote on both the original Initiative 940 and its successor, Engrossed Substitute House Bill 3003, this November.

Eyman hilariously argues that the Legislature’s adoption of ESHB was unconstitutional, and the remedy is to send I-940 and ESHB 3003 to the ballot.

I say hilariously because, as most readers likely know, Eyman is the author of more unconstitutional initiatives than anyone else in Washington State history. The Supreme Court has struck down seven of his initiatives in whole or in part as unconstitutional (I-695 from 1999, I-722 from 2000, I-747 from 2001, I-960/I-1053/I-1185 from 2007, 2010, and 2012, and I-1366 from 2015).

Eyman has consistently demonstrated a lack of comprehension of constitutional law with the positions that he has publicly taken over the years. It is truly absurd and farcical that he is now accusing the Legislature of not following the Constitution.

What’s more, he is doing so without representation. That’s right… Eyman filed this suit pro se . He apparently lacks the funds to pursue the case with an attorney.

The opening words of Eyman’s complaint are quite the doozy. Wrote Eyman:

On Thursday, March 8, 2018, the Legislature effectively eliminated initiatives to the legislature even though they are guaranteed right under the state Constitution.

Nonsense! If anything, the Legislature enhanced the constitutional power of initiatives to the Legislature when it adopted I-940 and ESHB 3003.

In taking those votes last Thursday, the Legislature showed the people of Washington that it is capable of taking up a thorny issue identified by hundreds of thousands of Washingtonians via petition as an urgent priority, and making progress on that issue instead of punting the matter to the people for a vote.

With I-940, the Legislature demonstrated that initiatives to the Legislature are in fact distinguishable from initiatives to the people, which is precisely what our Founders intended. (Otherwise, they’d have created one initiative process instead of two.)

If De-Escalate Washington had wanted a public vote on I-940, they could have submitted the measure as an initiative to the people. Then it would have gone to the November ballot for Washingtonians to consider. But they deliberately chose a different path. They submitted an initiative to the Legislature and then engaged in the legislative process in the hopes of getting state law changed sooner.

And, lo and behold, they were successful. An accord was reached and implemented that proponents and opponents alike had input on. It was a great outcome.

But Tim Eyman apparently doesn’t like happy endings. So here we are.

If this lawsuit gets decided on the merits — which may or may not happen — the relevant issue will be did the Legislature exceed its constitutional authority when it separately passed ESHB 3003 as opposed to sending voters an alternative to consider. Our view is that the requirements of Article II, Section 1a were satisfied when the Legislature voted to adopt I-940 as submitted.

The debate and vote on ESHB 3003 were separate. Yes, the initiative and the bill concerned the same subject. But it is often the case that different pieces of legislation concern the same subject. Competing bills are commonplace in the statehouse, and voters have even seen competing initiatives from different sponsors on their ballots before — memorably in 2014 with respect to gun responsibility and background checks, and in 2005 with respect to medical malpractice. What is rarer is for competing pieces of legislation to be acted upon at the same time.

Let’s suppose for a moment that the votes had not been there to enact I-940, but the votes had existed the compromise bill, ESHB 3003. In that case, I-940 would have gone to the voters, having not been acted on by the Legislature, while ESHB 3003 would have become session law in the meantime.

Here’s a question for those who believe passage of ESHB 3003 was unconstitutional: Do you believe the Legislature would’ve violated the Constitution by passing a bill concerning the same subject as an initiative it rejected?

The Constitution says the Legislature can do three things with an initiative to the Legislature: approve it, reject it/send it to the ballot, or send it to the ballot with an alternative. It does not say that when an initiative to the Legislature is submitted, the Legislature temporarily loses its authority to make laws on that subject.

If the Constitution did say that — or if the existing language was interpreted the way Eyman wants — it would be very problematic. It would open the door in the future to further malicious uses of the initiative process. Any entity that wanted to paralyze progress on a given issue could simply submit an initiative to the Legislature and thereby tie the hands of the people’s representatives for the better part of a year. Initiatives to the Legislature could be used for stalling purposes.

And that is not what the authors of the Seventh Amendment had in mind when they proposed adding the initiative power to Washington’s Constitution in 1912.

Initiatives to the Legislature that are approved are subject to referendum, and that Section 10 of ESHB 3003 says that if a referendum on I-940 is certified for the November 2018 ballot, the act will become null and void. That, not a lawsuit, is the proper way for this issue to be brought to the November 2018 ballot.

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