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.

Wednesday, August 29th, 2018

State Supreme Court erred in ordering I‑940 onto the ballot, but that mistake can be fixed

Yes­ter­day, as we report­ed, the Wash­ing­ton State Supreme Court hand­ed down a ver­dict in Eyman v. Wyman, Tim Eyman’s legal chal­lenge to the con­sti­tu­tion­al­i­ty of the Leg­is­la­ture’s ground­break­ing com­pro­mise on De-Esca­late Wash­ing­ton’s use of dead­ly force ini­tia­tive (I‑940, an ini­tia­tive to the Leg­is­la­ture for 2018).

The Court held that the Leg­is­la­ture stepped out of bounds when it near­ly simul­ta­ne­ous­ly adopt­ed I‑940 as orig­i­nal­ly sub­mit­ted by the peo­ple along with a suc­ces­sor bill (ESHB 3003) which made changes to I‑940 that were sup­port­ed both by De-Esca­late Wash­ing­ton and rep­re­sen­ta­tives of law enforce­ment groups.

How­ev­er, the Supreme Court did more than just nix ESHB 3003. It also — in an unprece­dent­ed judi­cial act — ordered I‑940 placed on the bal­lot for vot­ers to con­sid­er, even though I‑940 was adopt­ed into law by the Wash­ing­ton State House and Sen­ate as part of the pro­ceed­ings of the 2018 Leg­is­la­ture.

In issu­ing its order, the Supreme Court itself stepped out of bounds, but attor­neys for De-Esca­late Wash­ing­ton have afford­ed the Court an oppor­tu­ni­ty to revise its ver­dict and avoid set­ting a very prob­lem­at­ic, very trou­bling prece­dent. Late yes­ter­day, after study­ing the rul­ing, they asked the Court to recon­sid­er.

The Court’s lead opin­ion makes it sound as though a major­i­ty of jus­tices vot­ed to send I‑940 to the bal­lot, but this is actu­al­ly not the case. In real­i­ty, there are three blocs of jus­tices with three dif­fer­ent views.

  • Jus­tices Sheryl Gor­don McCloud, Steve Gon­za­lez, Mary Yu, and Char­lie Wig­gins vot­ed to inval­i­date ESHB 3003, and stop at that. They filed an opin­ion signed by McCloud. Yu filed a con­cur­ring opin­ion.
  • Jus­tice Bar­bara Mad­sen vot­ed to inval­i­date ESHB 3003 and send I‑940 alone to the bal­lot. She filed a solo opin­ion out­lin­ing her posi­tion.
  • Jus­tices Debra Stephens, Mary Fairhurst, Charles John­son, and Susan Owens vot­ed to send both ESHB 3003 and I‑940 to the bal­lot, argu­ing that nei­ther the adop­tion of the bill nor the adop­tion of the ini­tia­tive were uncon­sti­tu­tion­al acts, but rather acts that trig­ger a pub­lic vote under Arti­cle II. They filed an opin­ion signed by Stephens. Fairhurst filed a con­cur­ring opin­ion.

These are all dif­fer­ent posi­tions that we view as irrec­on­cil­able.

De-Esca­late Wash­ing­ton looked at all the opin­ions and then nat­u­ral­ly asked why the hold­ing of a sin­gle jus­tice should con­trol the out­come when the oth­er eight jus­tices reached two sets of dif­fer­ent con­clu­sions and would have entered dif­fer­ent orders.

In De-Esca­late Wash­ing­ton’s analy­sis, the Court was not split 5–4 on the ques­tion of whether I‑940 should go before vot­ers, but rather split 4–1‑4.

By this log­ic, since no major­i­ty exist­ed in sup­port of the posi­tion of send­ing only I‑940 to the bal­lot, the Supreme Court should have left I‑940 alone.

If Mad­sen had want­ed to, she could have joined Stephens’ bloc. Then that bloc would have been a major­i­ty, and Stephens’ opin­ion would pre­sum­ably have been the lead one, while McCloud’s bloc would have filed a dis­sent.

But Mad­sen did not make that choice.

The Supreme Court this morn­ing respond­ed to De-Esca­late Wash­ing­ton by say­ing it would con­sid­er its request. The Court has asked the oth­er par­ties in the case to sub­mit a brief on the mat­ter by the end of the day today.

Two days remain before August ends, which is when Sec­re­tary of State Kim Wyman’s office told the Court that elec­tions offi­cials need­ed to know whether I‑940 should appear on bal­lots or not. Accord­ing­ly, there is still time for the Supreme Court to revise its order and address the mis­take that it has made.

As Jus­tice Mary Yu said in her excel­lent con­cur­ring opin­ion, the Court ven­tured out­side of its judi­cial realm by order­ing I‑940 onto the bal­lot.

In NPI’s view, the Court essen­tial­ly cre­at­ed — in one fell swoop — a third class of ini­tia­tives not con­tem­plat­ed by the Framers of the Sev­enth Amend­ment: judi­cial­ly-referred ini­tia­tives. I‑940 was orig­i­nal­ly an ini­tia­tive to the Leg­is­la­ture, but the Leg­is­la­ture vot­ed to adopt it, so it is now the law of the land.

With yes­ter­day’s order, though, the Court basi­cal­ly over­rode the Leg­is­la­ture and turned I‑940 into an ini­tia­tive from the judi­cia­ry to the peo­ple.

The Wash­ing­ton State Con­sti­tu­tion pre­scribes three fates for ini­tia­tives to the Leg­is­la­ture: they can be adopt­ed by the House and Sen­ate, ignored, or sent to the bal­lot with an alter­na­tive. In the case of I‑940, the record is clear. Majori­ties of both cham­bers vot­ed to adopt I‑940. The mea­sure was not ignored, and it was­n’t sent to the bal­lot with an alter­na­tive. There­fore, it is the adopt­ed law of the state as opposed to a pend­ing bal­lot mea­sure wait­ing to go before vot­ers.

Any­one who did­n’t like that out­come and want­ed I‑940 on the bal­lot could have start­ed a ref­er­en­dum cam­paign: the Con­sti­tu­tion per­mits adopt­ed ini­tia­tives to the Leg­is­la­ture to be sub­ject­ed to ref­er­en­dum. That would have been the prop­er and con­sti­tu­tion­al avenue of send­ing the mat­ter to vot­ers. ESHB 3003 even con­tained a self-destruct clause in the event of a suc­cess­ful ref­er­en­dum dri­ve.

But no one filed a ref­er­en­dum peti­tion against I‑940. Instead, pub­lic­i­ty-seek­ing Tim Eyman filed a law­suit, which was lat­er joined by Sen­a­tor Mike Pad­den.

The Supreme Court isn’t the Leg­is­la­ture; jus­tices don’t get to play law­mak­er for a day when they feel like it. Their job is to inter­pret the law, not make it.

It is clear the Court feels the Leg­is­la­ture erred when it tried to per­fect I‑940 by pass­ing a sep­a­rate bill to super­sede the ini­tia­tive in the same leg­isla­tive ses­sion. So be it: we can respect that hold­ing. What we can’t respect is the Court step­ping out of its own bounds in response to what the Leg­is­la­ture did.

The Court needs to per­form an about-face and issue a new order. It should decline to grant the plain­tiffs’ request for a writ of man­damus com­pelling the Sec­re­tary of State to put I‑940 on the bal­lot. It has the option of sim­ply declar­ing ESHB 3003 null and void if it wish­es. It should not go fur­ther than that.

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