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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.