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.

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.)