NPI's Cascadia Advocate

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.

Thursday, June 28th, 2018

Tim Eyman’s I‑940 legal challenge is another gambit to weaponize the initiative power

This after­noon, the Wash­ing­ton State Supreme Court will hear oral argu­ment in Eyman v. Wyman, a legal chal­lenge that dis­graced ini­tia­tive pro­mot­er Tim Eyman filed against the Wash­ing­ton State Leg­is­la­ture sev­er­al months ago fol­low­ing the Leg­is­la­ture’s adop­tion of De-Esca­late Wash­ing­ton’s ground­break­ing Ini­tia­tive I‑940 and a suc­ces­sor bill intend­ed to improve the mea­sure’s pro­vi­sions.

I‑940, which pub­lic opin­ion research has shown is extreme­ly pop­u­lar with Wash­ing­to­ni­ans, 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.)

I‑940 is not an Eyman ini­tia­tive, but that did­n’t stop the self-serv­ing huck­ster from launch­ing a legal cru­sade to inval­i­date the Leg­is­la­ture’s hard work.

Thurston Coun­ty Supe­ri­or Court Judge Chris­tine Schaller hand­ed Eyman a par­tial vic­to­ry at the tri­al court lev­el when she issued a rul­ing order­ing I‑940 to be placed on the Novem­ber 2018 bal­lot. The State of Wash­ing­ton prompt­ly appealed her deci­sion, joined by De-Esca­late Wash­ing­ton, the mea­sure’s spon­sors.

The case is now before the Supreme Court, which, as men­tioned, is hear­ing oral argu­ments from the par­ties today and will ren­der a final ver­dict soon.

The Court has been asked to resolve the mat­ter pri­or to August 31st so that prepa­ra­tions for the Novem­ber 2018 elec­tion are not delayed.

Eyman is argu­ing that the Leg­is­la­ture vio­lat­ed the Wash­ing­ton State Con­sti­tu­tion by adopt­ing leg­is­la­tion that mod­i­fies Ini­tia­tive 940 as well as Ini­tia­tive 940 itself… specif­i­cal­ly, Arti­cle II, Sec­tion 1a, which lays out the ini­tia­tive pow­er:

(a) Ini­tia­tive: The first pow­er reserved by the peo­ple is the ini­tia­tive. Every such peti­tion shall include the full text of the mea­sure so pro­posed. In the case of ini­tia­tives to the leg­is­la­ture and ini­tia­tives to the peo­ple, the num­ber of valid sig­na­tures of legal vot­ers required shall be equal to eight per­cent of the votes cast for the office of gov­er­nor at the last guber­na­to­r­i­al elec­tion pre­ced­ing the ini­tial fil­ing of the text of the ini­tia­tive mea­sure with the sec­re­tary of state.

  • Ini­tia­tive peti­tions shall be filed with the sec­re­tary of state not less than four months before the elec­tion at which they are to be vot­ed upon, or not less than ten days before any reg­u­lar ses­sion of the leg­is­la­ture.
  • If filed at least four months before the elec­tion at which they are to be vot­ed upon, he shall sub­mit the same to the vote of the peo­ple at the said elec­tion.
  • If such peti­tions are filed not less than ten days before any reg­u­lar ses­sion of the leg­is­la­ture, he shall cer­ti­fy the results with­in forty days of the fil­ing.
  • If cer­ti­fi­ca­tion is not com­plete by the date that the leg­is­la­ture con­venes, he shall pro­vi­sion­al­ly cer­ti­fy the mea­sure pend­ing final cer­ti­fi­ca­tion of the mea­sure.
  • Such ini­tia­tive mea­sures, whether cer­ti­fied or pro­vi­sion­al­ly cer­ti­fied, shall take prece­dence over all oth­er mea­sures in the leg­is­la­ture except appro­pri­a­tion bills and shall be either enact­ed or reject­ed with­out change or amend­ment by the leg­is­la­ture before the end of such reg­u­lar ses­sion.
  • If any such ini­tia­tive mea­sures shall be enact­ed by the leg­is­la­ture it shall be sub­ject to the ref­er­en­dum peti­tion, or it may be enact­ed and referred by the leg­is­la­ture to the peo­ple for approval or rejec­tion at the next reg­u­lar elec­tion.
  • If it is reject­ed or if no action is tak­en upon it by the leg­is­la­ture before the end of such reg­u­lar ses­sion, the sec­re­tary of state shall sub­mit it to the peo­ple for approval or rejec­tion at the next ensu­ing reg­u­lar gen­er­al elec­tion.
  • The leg­is­la­ture may reject any mea­sure so pro­posed by ini­tia­tive peti­tion and pro­pose a dif­fer­ent one deal­ing with the same sub­ject, and in such event both mea­sures shall be sub­mit­ted by the sec­re­tary of state to the peo­ple for approval or rejec­tion at the next ensu­ing reg­u­lar gen­er­al elec­tion.
  • When con­flict­ing mea­sures are sub­mit­ted to the peo­ple the bal­lots shall be so print­ed that a vot­er can express sep­a­rate­ly by mak­ing one cross (X) for each, two pref­er­ences, first, as between either mea­sure and nei­ther, and sec­ond­ly, as between one and the oth­er.
  • If the major­i­ty of those vot­ing on the first issue is for nei­ther, both fail, but in that case the votes on the sec­ond issue shall nev­er­the­less be care­ful­ly count­ed and made pub­lic.
  • If a major­i­ty vot­ing on the first issue is for either, then the mea­sure receiv­ing a major­i­ty of the votes on the sec­ond issue shall be law.

[For the sake of read­abil­i­ty, each sen­tence fol­low­ing the pre­am­ble of Sec­tion 1(a) has been giv­en its own bul­let in the block­quot­ed text above. These bul­lets and line breaks do not appear in the text of the Con­sti­tu­tion.]

Eyman and Mike Pad­den (and their attor­neys Joel Ard and David DeWolf) say that by adopt­ing I‑940 and a suc­ces­sor bill, ESSB 3003, the Leg­is­la­ture imper­mis­si­bly did an an end-run around the pro­vi­sions of Arti­cle II, Sec­tion 1(a).

“To adopt an ini­tia­tive, the Leg­is­la­ture must do so with­out change or amend­ment,” Ard and DeWolf argue in their brief. “But pri­or to vot­ing on I‑940, the Leg­is­la­ture first amend­ed it by the act of both cham­bers vot­ing in favor of ESHB 3003. When, lat­er in time, it pur­port­ed to adopt I‑940, it did not do so with­out change or amend­ment, because ear­li­er in time it had amend­ed I‑940.”

Essen­tial­ly, they’re argu­ing the Leg­is­la­ture’s con­sid­er­a­tion and adop­tion of I‑940 and ESHB 3003 were not sep­a­rate acts because the Leg­is­la­ture lost its pow­er to inede­pen­dent­ly adopt a bill con­cern­ing the same issue once I‑940 came before it.

To say that argu­ment is prob­lem­at­ic would be an under­state­ment.

“An over­ly broad con­struc­tion of the phrase ‘same sub­ject’ in arti­cle II, sec­tion 1(a) would effec­tive­ly ham­string leg­isla­tive author­i­ty to address a top­ic,” notes Attor­ney Gen­er­al Bob Fer­gu­son’s reply brief on behalf of the Wash­ing­ton State Leg­is­la­ture.

“An ini­tia­tive peti­tion requires the sig­na­tures of vot­ers num­ber­ing eight per­cent of the votes cast for gov­er­nor. Con­st. art. II, § 1(a). If Mr. Eyman was right, the sig­na­tures of that num­ber of reg­is­tered vot­ers could annu­al­ly deprive the Leg­is­la­ture of author­i­ty to act on a top­ic. This Court has pre­vi­ous­ly cau­tioned against con­stru­ing the ini­tia­tive pow­er to deprive the Leg­is­la­ture of its author­i­ty.”

“Con­stru­ing arti­cle II, sec­tion 1(a) to broad­ly pre­clude any leg­is­la­tion on the “same sub­ject” as a pend­ing ini­tia­tive to the leg­is­la­ture would allow eight per­cent of the vot­ers to sim­i­lar­ly deal a death of a thou­sand cuts to leg­isla­tive author­i­ty by repeat­ed­ly propos­ing ini­tia­tives on a par­tic­u­lar top­ic year by year,” the brief adds. “The con­sti­tu­tion is draft­ed more nar­row­ly to pre­clude this result by spec­i­fy­ing that only ‘con­flict­ing mea­sures’ be treat­ed as alter­na­tives.”

By adopt­ing ESHB 3003, the Leg­is­la­ture was demon­strat­ing that it was capa­ble of tak­ing action and respond­ing to a peti­tion for a redress of griev­ances by the peo­ple of the State of Wash­ing­ton. For once, the leg­isla­tive process was employed to improve an idea pro­posed through the ini­tia­tive process in a way that was accept­able to both pro­po­nents and oppo­nents of the orig­i­nal ini­tia­tive.

Every­one won.

Well, that is, every­one except for peo­ple like Tim Eyman who are inter­est­ed in weaponiz­ing the ini­tia­tive pow­er to advance their own harm­ful agen­da.

The Framers of the Sev­enth Amend­ment, which added the pow­ers of ini­tia­tive and ref­er­en­dum to the Wash­ing­ton State Con­sti­tu­tion in 1912, aren’t around to tell us what they think of Eyman’s argu­ments and his prob­lem­at­ic inter­pre­ta­tions of what today is known as Arti­cle II, Sec­tion 1(a) of our state’s plan of gov­ern­ment.

But although they have passed on, their writ­ten views remain with us.

A few years ago, NPI asked the State Archives if any mate­ri­als sur­vived from the 1911–1912 cam­paign to pass the Sev­enth Amend­ment. The State Archives said yes and sent over (among oth­er doc­u­ments), a copy of a pam­phlet pub­lished by the Direct Leg­is­la­tion League advo­cat­ing for what became the Sev­enth Amend­ment.

The pam­phlet, which runs sev­er­al pages, makes it very clear that the ini­tia­tive and ref­er­en­dum pow­ers are not meant to replace or sup­plant the leg­isla­tive process, but rather to com­ple­ment the rep­re­sen­ta­tive plan of gov­ern­ment approved at state­hood in 1889 by a con­ven­tion of most­ly Repub­li­can del­e­gates.

The pam­phlet reads, in part:

Of course, it is not pro­posed that the peo­ple shall do much of the law mak­ing, for all have their pri­vate affairs to attend to and do not wish to be undu­ly both­ered with these mat­ters.

We shall always need the ser­vices of trained leg­is­la­tors, and so long as they give us faith­ful, dis­in­ter­est­ed and rea­son­ably wise ser­vice, we shall not inter­fere. But we sel­dom get such ser­vice, and we many times need the pow­er of Direct Leg­is­la­tion so that we may lock the barn before the horse is stolen. With­out these pow­ers we are not tru­ly self-gov­ern­ing, but mere­ly elect oth­er men to gov­ern us who have, for the most part, been select­ed by par­ty boss­es and machines.

Under our present sys­tem the sole law-mak­ing pow­er is vest­ed in the leg­is­la­ture. The great store of integri­ty and polit­i­cal wis­dom that rests in the mass of the peo­ple is lost because we allow a few leg­is­la­tors, often con­trolled by cor­po­rate and oth­er self­ish inter­ests, to dic­tate the whole pol­i­cy of the state. The leg­is­la­ture should advise and lead, but when that body mis­leads we must have the pow­er to stop it. When this pow­er is once vest­ed in the peo­ple, the leg­is­la­ture acts in such a way as to almost obvi­ate the neces­si­ty of its use.

Empha­sis is theirs.

In a lat­er pas­sage, the Direct Leg­is­la­tion League returns to this argu­ment again, declar­ing that the ini­tia­tive, ref­er­en­dum, and recall will pro­vide for “rep­re­sen­ta­tive gov­ern­ment with a peo­ple’s check on mis­rep­re­sen­ta­tive gov­ern­ment.”

The fact that the Sev­enth Amend­ment pro­vides for ini­tia­tives to the Leg­is­la­ture — as opposed to just ini­tia­tives to the peo­ple, the only kind most oth­er west­ern states have — is per­haps the best evi­dence of all that the Framers did­n’t intend to abro­gate or take away the Leg­is­la­ture’s law­mak­ing pow­ers.

As their mate­ri­als make clear, their aim was to give more pow­er to the peo­ple, not to take away pow­er from the peo­ple’s duly elect­ed rep­re­sen­ta­tives.

Tak­ing away pow­er from the peo­ple’s duly elect­ed rep­re­sen­ta­tives is what the respon­dents in Eyman v. Wyman want our courts to do, how­ev­er.

When an ini­tia­tive to the Leg­is­la­ture is sub­mit­ted, the respon­dents want the Leg­is­la­ture’s law­mak­ing pow­ers on that top­ic to be frozen in def­er­ence to the three pre­scribed con­sti­tu­tion­al out­comes for ini­tia­tives to the Leg­is­la­ture.

If the Framers had want­ed that kind of restric­tion, it stands to rea­son they would have includ­ed it in the Sev­enth Amend­ment. But they did­n’t.

Their agen­da was­n’t to sab­o­tage rep­re­sen­ta­tive democ­ra­cy. They believed in rep­re­sen­ta­tive democ­ra­cy, despite its flaws and faults.

Adop­tion of the Sev­enth Amend­ment, they argued, would “make it eas­i­er to elect good men and to keep them good after they are elect­ed.”

With this legal chal­lenge, the Leg­is­la­ture is being attacked for hav­ing — of all things – lis­tened to all sides of an issue and com­ing up with a plan to thought­ful­ly address the con­cerns raised instead of sim­ply punt­ing the mat­ter to the bal­lot for the vot­ers to decide… which is what many observers were expect­ing.

Judg­ing by the briefs he and his attor­neys have filed, Eyman does­n’t believe in ini­tia­tives to the Leg­is­la­ture. Rather, he believes in ini­tia­tives that tie the hands of the Leg­is­la­ture. Accord­ing­ly, Eyman is invit­ing the Supreme Court to pave the way for the ini­tia­tive pow­er to be fur­ther weaponized, so that down the road, it can be used by him and oth­ers for all sorts of mali­cious and destruc­tive hostage-tak­ing schemes.

The Supreme Court should say no to Eyman’s invi­ta­tion.

The jus­tices should, how­ev­er, feel free to remind Eyman and Sen­a­tor Mike Pad­den that any­one upset with the Leg­is­la­ture’s adop­tion of I‑940 and ESSB 3003 could have arranged for a pub­lic vote sim­ply by fil­ing a ref­er­en­dum peti­tion and col­lect­ing 129,811 valid sig­na­tures with­in nine­ty days of the Leg­is­la­ture’s adjourn­ment.

It is iron­ic that Eyman launched a legal chal­lenge instead of fil­ing a ref­er­en­dum against Ini­tia­tive 940. If he and Pad­den tru­ly want­ed a pub­lic vote, they could have got­ten one by secur­ing the resources to mount a suc­cess­ful sig­na­ture dri­ve.

But then, a pub­lic vote isn’t what they’re real­ly after. They are right wing extrem­ists liv­ing in a state gov­erned by pro­gres­sive Democ­rats — a state where Repub­li­cans are cur­rent­ly out of pow­er, and like­ly to con­tin­ue to be for the fore­see­able future. This legal chal­lenge is a gam­bit to score a con­sti­tu­tion­al inter­pre­ta­tion the right wing can use to tie the hands of Demo­c­ra­t­ic leg­isla­tive majori­ties for years to come.

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