I-2081 backers submit signatures
I-2081 backers pose for pictures next to a borrowed school bus after submitting signatures (Photo: Defend Washington)

A right wing mea­sure with the poten­tial to erode the trust­ed rela­tion­ships between stu­dents and those who care for them was today chal­lenged in court as uncon­sti­tu­tion­al by a non­prof­it-led coali­tion rep­re­sent­ed by the Amer­i­can Civ­il Lib­er­ties Union of Wash­ing­ton Foun­da­tion, QLaw Foun­da­tion of Wash­ing­ton, and Legal Voice.

Ten plain­tiffs have stepped for­ward in an effort to thwart Ini­tia­tive 2081, spon­sored by Wash­ing­ton State Repub­li­can Par­ty Chair Jim Walsh and fund­ed by megamil­lion­aire Bri­an Hey­wood, one of Wal­sh’s top donors and a hedge fund man­ag­er. I‑2081 is one-sixth of a slate of ini­tia­tives qual­i­fied to the 2024 Leg­is­la­ture by Walsh and Hey­wood. It pur­ports to be about parental noti­fi­ca­tion, but it is bad­ly writ­ten and has been assessed as most­ly hav­ing the effect of restat­ing exist­ing law. But where it diverges from exist­ing law is how it threat­ens the bal­ance between stu­dents’ rights and par­ents’ rights.

The Demo­c­ra­t­ic-con­trolled Leg­is­la­ture opt­ed to adopt I‑2081 rather than send it to vot­ers, part­ly to ensure that the House and Sen­ate would be able to amend I‑2081 by major­i­ty vote next year, and part­ly to keep right wing cul­ture war mes­sag­ing off the 2024 bal­lot. As a result, the mea­sure is sched­uled to go into effect on June 6th. 

The plain­tiffs con­tend that the mea­sure, if it’s not blocked, would “erode cur­rent pri­va­cy pro­tec­tions for young peo­ple, may inter­fere with or dis­cour­age trust­ed con­ver­sa­tions school-based health­care providers and edu­ca­tors have with stu­dents, pre­vent stu­dents from seek­ing assis­tance, and great­ly frus­trate a school’s abil­i­ty to cov­er a wide range of top­ics in cur­ricu­lum.” They are ask­ing a King Coun­ty Supe­ri­or Court judge to find that Ini­tia­tive 2081 vio­lates Arti­cle II, Sec­tion 37 of the Wash­ing­ton State Con­sti­tu­tion, and issue a per­ma­nent injunc­tion bar­ring its implementation. 

In prepa­ra­tion for their chal­lenge, they asked Attor­ney Gen­er­al Bob Fer­gu­son and Solic­i­tor Gen­er­al Noah Pur­cell to bring a suit against Ini­tia­tive 2081. It is the AGO’s respon­si­bil­i­ty to defend laws passed by the peo­ple and their elect­ed rep­re­sen­ta­tives, so Fer­gu­son and Pur­cell declined, but the plain­tiffs were oblig­ed to ask as a pre­req­ui­site of fil­ing their request for a declara­to­ry judg­ment in King Coun­ty Supe­ri­or Court.

The ten plain­tiffs are:

  • Legal Coun­sel for Youth and Children
  • Laven­der Rights Project
  • Mom­sRis­ing
  • Oasis Youth Center
  • Peo­ple of Col­or Against AIDS Network
  • Sex­u­al Vio­lence Law Center
  • South­west Wash­ing­ton Equi­ty Coalition
  • Kari Lom­bard, a Psy­chi­atric-Men­tal Health Nurse Prac­ti­tion­er and a for­mer school nurse at West Seat­tle High School in Seat­tle, Washington
  • Jane Doe, an anony­mous plain­tiff with two stu­dents in the Seat­tle Pub­lic Schools
  • South Whid­bey School District

The plain­tiffs have the bur­den of prov­ing that I‑2081 is uncon­sti­tu­tion­al beyond a rea­son­able doubt. Regard­less of the rul­ing they get in King Coun­ty Supe­ri­or Court, this case seems des­tined to wind up in the Wash­ing­ton State Supreme Court. 

Typ­i­cal­ly, the time­frame for a con­sti­tu­tion­al chal­lenge to a statewide ini­tia­tive is between a year to a year and sev­er­al months, so we’ll prob­a­bly get a final ver­dict from the high court — if the case goes all the way through the process — in mid-2025. 

The plain­tiffs’ case against I‑2081 rests on their Arti­cle II, Sec­tion 37 argument. 

That pro­vi­sion of the Con­sti­tu­tion states:

ARTICLE II, SECTION 37. REVISION OR AMENDMENT. No act shall ever be revised or amend­ed by mere ref­er­ence to its title, but the act revised or the sec­tion amend­ed shall be set forth at full length.

This is in the Con­sti­tu­tion because the Framers believed in trans­par­ent legislating. 

Those Cas­ca­dia Advo­cate read­ers accus­tomed to read­ing or skim­ming bills know that pro­posed leg­is­la­tion typ­i­cal­ly adheres to a for­mat that makes it pos­si­ble to see what is being added, mod­i­fied, or delet­ed. New lan­guage is indi­cat­ed with under­lin­ing, lan­guage being removed is indi­cat­ed with strikethroughs. Vol­ume-wise, the word count in many bills con­sists pri­mar­i­ly of what’s already on the books, with a few small revi­sions shown inline. That’s to com­ply with Sec­tion 37 and be transparent.

But Ini­tia­tive 2081 does­n’t iden­ti­fy the oth­er statutes that it seeks to supersede.

You can see this for your­self if you read the ini­tia­tive. While it does refer to oth­er RCWs, there are no sec­tions that say “RCW ____ is mod­i­fied to read as fol­lows,” fol­lowed by a copy of those RCWs and pro­posed lan­guage mod­i­fy­ing those RCWS. Prob­a­bly that’s because who­ev­er wrote I‑2081 did­n’t under­stand their Arti­cle 37 obligations.

That’s a mis­take that Jim Walsh and Bri­an Hey­wood now have to live with. They could have had their draft vet­ted by peo­ple with exper­tise in con­sti­tu­tion­al law. Either they did­n’t do that or who­ev­er they con­sult­ed aren’t real­ly experts. 

Either way, these were solv­able defects.

In the words of the plain­tiffs: “Ini­tia­tive 2081 revis­es exist­ing laws and fails to set forth that it does so.” Their com­plaint offers sev­er­al exam­ples, such as these: 

  • “RCW 70.02.130 requires that, when a young per­son is legal­ly autho­rized to access health care with­out parental con­sent, the health care provider may not dis­close health care infor­ma­tion about the youth — even to their par­ents — with­out their con­sent. This impor­tant pro­tec­tion applies to men­tal and behav­ioral health care, repro­duc­tive health care, and sex­u­al­ly trans­mit­ted infec­tion test­ing — all of which minors of a cer­tain age can receive with­out parental con­sent. Ini­tia­tive 2081 revis­es RCW 70.02.130 by grant­i­ng parental access to med­ical records held by schools, erod­ing crit­i­cal pri­va­cy pro­tec­tions for youth attend­ing pub­lic schools. Yet, Ini­tia­tive 2081 fails to iden­ti­fy that it revis­es RCW 70.02.130.”
  • “Ini­tia­tive 2081 bypass­es the impor­tant excep­tions to parental noti­fi­ca­tion and the pro­vi­sion of fam­i­ly reuni­fi­ca­tion efforts — includ­ing safe­ty con­cerns — con­tained in RCW 13.32A.082, by instead requir­ing schools — with­out excep­tion — to inform par­ents if a youth is tak­en from a school to a youth shel­ter. Ini­tia­tive 2081 makes no men­tion of its effect on RCW 13.32A.082.”

The full com­plaint can be read below, or at this link.


I don’t prac­tice law, but I’ve observed a lot of con­sti­tu­tion­al chal­lenges to ini­tia­tives over the years, and I’ve seen a lot of them suc­ceed, despite the best efforts of state attor­neys to mount a vig­or­ous defense. The list of Tim Eyman spon­sored ini­tia­tives com­plete­ly or par­tial­ly struck down by the Wash­ing­ton State Supreme Court is quite long: I‑695, I‑722, I‑747, I‑776, I‑960, I‑1053, I‑1185, I‑1366, and I‑976. (Note that I‑1053 and I‑1185 were clones of I‑960; all three were inval­i­dat­ed by the same ver­dict.)

That’s pri­mar­i­ly because Eyman could not be both­ered to fol­low the Constitution. 

He knew how to manip­u­late reporters, go shop­ping for bal­lot titles, and raise mon­ey, but he refused to write ini­tia­tives that would stand up to legal scrutiny. 

Over time, Eyman’s intran­si­gence tar­nished his rep­u­ta­tion with­in right wing cir­cles, prompt­ing folks like Cary Con­dot­ta and Mike McK­ee of Restore Wash­ing­ton to argue that Eyman should not be entrust­ed with more of their move­men­t’s money.

Eyman’s ini­tia­tive fac­to­ry is now defunct and he’s on the side­lines as a spec­ta­tor, watch­ing Bri­an Hey­wood and Jim Walsh try to maneu­ver a boat­load of ini­tia­tives through the process. For his part, Hey­wood is infu­ri­at­ed that I‑2081 is now being sub­ject­ed to a law­suit. He told The Asso­ci­at­ed Press: “The law­suit is a friv­o­lous but not sur­pris­ing attempt to leg­is­late through law­suit rather than through the demo­c­ra­t­ic process.” 

A very amus­ing reaction. 

Hey­wood had no such con­cern when his side was chal­leng­ing the con­sti­tu­tion­al­i­ty of the law that levied Wash­ing­ton’s new cap­i­tal gains tax on the wealthy.

That legal chal­lenge, led by for­mer Attor­ney Gen­er­al Rob McKen­na, a promi­nent Repub­li­can, failed mis­er­ably, prompt­ing Hey­wood and Walsh to make I‑2109 part of their six-mea­sure slate last year. Unfor­tu­nate­ly for them, I‑2109 and its brethren aren’t polling well, though not sur­pris­ing­ly, they dis­pute that’s the case. 

A vic­to­ry over I‑2109, I‑2117, and I‑2124 at the bal­lot, cou­pled with a vic­to­ry over I‑2081 in court, would leave Walsh and Hey­wood two for six, assum­ing the Leg­is­la­ture does­n’t scrap their remain­ing two mea­sures in the next leg­isla­tive ses­sion (and it should). NPI is com­mit­ted to the defeat of all their bad ideas, and we invite read­ers who share that com­mit­ment to get involved in our Stop Greed project.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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