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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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