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.