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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.