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.

Tuesday, August 28th, 2018

State Supreme Court sends De-Escalate WA’s Initiative 940 to the November 2018 ballot

A deeply divid­ed Wash­ing­ton State Supreme Court ruled today that De-Esca­late Wash­ing­ton’s Ini­tia­tive 940 must appear on the Novem­ber 2018 bal­lot to be con­sid­ered by the peo­ple because its adop­tion by the Leg­is­la­ture last win­ter was effec­tive­ly not with­out change or amend­ment due to the Leg­is­la­ture’s pas­sage of a sep­a­rate com­pro­mise bill (ESHB 3003) intend­ed to super­sede I‑940.

I‑940 is an effort to change the stan­dard of account­abil­i­ty for use of dead­ly force. The stan­dard cur­rent­ly in statute requires pros­e­cu­tors to prove that a law enforce­ment offi­cer act­ed “with­out mal­ice”, which is almost impos­si­ble to prove.

Dur­ing the 2018 ses­sion, leg­isla­tive lead­ers worked with both the De-Esca­late Wash­ing­ton coali­tion and rep­re­sen­ta­tives from law enforce­ment groups to per­fect the ini­tia­tive with a suc­ces­sor bill so it would­n’t have to go to the bal­lot.

Nice try, but sor­ry, I‑940 has to go to the bal­lot, the Supreme Court said, bring­ing to an end a legal chal­lenge to the I‑940 com­pro­mise ini­ti­at­ed by Tim Eyman.

“A major­i­ty of this court agrees that ESHB 3003 is void and unen­force­able and, hence, that we can­not com­pel the sec­re­tary of state to place it on the bal­lot,” wrote Jus­tice Sheryl Gor­don McCloud. “I believe that the leg­is­la­ture prop­er­ly and valid­ly enact­ed I‑940; that I‑940 com­plies with arti­cle II, sec­tion 1(a) [of the Con­sti­tu­tion]; and hence, that this court lacks the pow­er to com­pel the sec­re­tary of state to place 1–940 on the bal­lot. A major­i­ty of this court, how­ev­er, dis­agrees. As a result, a major­i­ty of this court affirms the supe­ri­or court’s deci­sion to issue a writ of man­damus com­pelling the sec­re­tary of state to place 1–940 on the bal­lot.”

The opin­ions filed in this case are a chal­leng­ing read due to the jus­tices’ sharply dif­fer­ing views and will become inter­est­ing fod­der for con­sti­tu­tion­al law class­es.

Here is a sum­ma­ry of the opin­ions:

  • Jus­tice Sheryl Gor­don McCloud wrote both for her­self as well as for Jus­tices Char­lie Wig­gins, Steven Gon­za­lez, and Mary Yu. As stat­ed in the con­clud­ing except above, Jus­tice McCloud’s par­ty would have inval­i­dat­ed just the suc­ces­sor bill and left I‑940 alone, but they were one shy of a major­i­ty.
  • Jus­tice Yu wrote a con­cur­ring opin­ion express­ing her dis­sat­is­fac­tion with the end result and the Court’s place­ment of I‑940 on the bal­lot.
  • Jus­tice Bar­bara Mad­sen authored an opin­ion con­cur­ring with Jus­tice McCloud’s par­ty to the extent that ESHB 3003 effec­tive­ly amend­ed I‑940, but dis­agree­ing with McCloud’s par­ty that the appro­pri­ate rem­e­dy was to strike only the suc­ces­sor bill and leave the orig­i­nal ini­tia­tive stand­ing.
  • Jus­tice Debra Stephens authored a dis­sent­ing opin­ion joined by Jus­tices Susan Owens and Charles John­son rea­son­ing that both I‑940 and ESHB 3003 were valid­ly approved by the Leg­is­la­ture dur­ing the 2018 ses­sion, but that since ESHB 3003 con­sti­tutes an alter­na­tive to Ini­tia­tive 940, it must be put on the bal­lot along with the orig­i­nal ini­tia­tive for the peo­ple to con­sid­er.
  • Jus­tice Mary Fairhurst authored a short­er dis­sent­ing opin­ion that argues for the same rem­e­dy, or out­come, as Jus­tice Stephens’ dis­sent.

Not since the Ander­sen deci­sion was hand­ed down can I recall the Supreme Court split­ting every which way like this in such a high pro­file case.

NPI shares Jus­tice Yu’s unease about the prece­dent this ver­dict sets. It is the province of the judi­cia­ry to say what the law is, but with this deci­sion, the Supreme Court is veer­ing out­side of its realm. It has done more than inter­pret the law.

De-Esca­late Wash­ing­ton expressed its dis­ap­point­ment with the Court’s deci­sion in a state­ment sent to the North­west Pro­gres­sive Insti­tute.

“The work we did with law enforce­ment to reach a con­sen­sus agree­ment on police reform was tough, hon­est, and ground­break­ing, and we are dis­ap­point­ed that the Court took the posi­tion it did,” said Tim Reynon, co-chair of De-Esca­late Wash­ing­ton and a Puyallup Tribe of Indi­ans Coun­cilmem­ber.

“From the start our goal was to reform the law and build bridges between the com­mu­ni­ty and police. The improved rela­tion­ship with law enforce­ment has been an incred­i­ble plus. Yes, we would have liked to see the Court uphold I‑940 and ESHB 3003. We made com­mit­ments to law enforce­ment to get those polices into the law.  We are com­mit­ted to work­ing with law enforce­ment after the Novem­ber elec­tion to make sure that the polices in 3003 are enact­ed by the 2019 leg­is­la­ture.”

Although unhap­py with the out­come of Tim Eyman’s legal chal­lenge to I‑940, he coali­tion says it is nev­er­the­less pre­pared to mount a strong cam­paign in favor of I‑940 this autumn. Research by both the coali­tion and by NPI sug­gests the mea­sure will be over­whelm­ing­ly pop­u­lar with Wash­ing­to­ni­ans.

Voter support for Initiative 940: Poll comparison

Our polling and De-Esca­late Wash­ing­ton’s polling were con­duct­ed months apart and by dif­fer­ent firms, but the result­ing num­bers were very sim­i­lar. Both polls found an almost iden­ti­cal lev­el of sup­port for the mea­sure, while our sur­vey found slight­ly high­er oppo­si­tion to the mea­sure than the coali­tion did.

I‑940’s addi­tion to the bal­lot by the Supreme Court means that there will be a total of four ini­tia­tives before Wash­ing­ton vot­ers this Novem­ber.

The oth­ers are the Alliance for Jobs and Clean Ener­gy’s I‑1631 (which seeks to levy a fee on pol­lu­tion to fund a just and respon­si­ble tran­si­tion to clean ener­gy), Big Soda’s I‑1634 (which seeks to ban juris­dic­tions oth­er than Seat­tle from levy­ing tax­es on sug­ary bev­er­ages for pub­lic health pur­pos­es), and the Alliance for Gun Respon­si­bil­i­ty’s I‑1639 (which seeks to raise the min­i­mum age to pur­chase a semi­au­to­mat­ic rifle, impose new safe stor­age require­ments, and enhance back­ground checks on weapons pur­chas­es.)

Adjacent posts

  • Enjoyed what you just read? Make a donation


    Thank you for read­ing The Cas­ca­dia Advo­cate, the North­west Pro­gres­sive Insti­tute’s jour­nal of world, nation­al, and local pol­i­tics.

    Found­ed in March of 2004, The Cas­ca­dia Advo­cate has been help­ing peo­ple through­out the Pacif­ic North­west and beyond make sense of cur­rent events with rig­or­ous analy­sis and thought-pro­vok­ing com­men­tary for more than fif­teen years. The Cas­ca­dia Advo­cate is fund­ed by read­ers like you and trust­ed spon­sors. We don’t run ads or pub­lish con­tent in exchange for mon­ey.

    Help us keep The Cas­ca­dia Advo­cate edi­to­ri­al­ly inde­pen­dent and freely avail­able to all by becom­ing a mem­ber of the North­west Pro­gres­sive Insti­tute today. Or make a dona­tion to sus­tain our essen­tial research and advo­ca­cy jour­nal­ism.

    Your con­tri­bu­tion will allow us to con­tin­ue bring­ing you fea­tures like Last Week In Con­gress, live cov­er­age of events like Net­roots Nation or the Demo­c­ra­t­ic Nation­al Con­ven­tion, and reviews of books and doc­u­men­tary films.

    Become an NPI mem­ber Make a one-time dona­tion