Nonprofit-led coalition files lawsuit to overturn Brian Heywood and Jim Walsh’s I‑2081

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.