State high court sends deadly-force measure to the ballot

But it will be as originally written, not the compromise version of I-940 that lawmakers approved.

By Gene Johnson and Rachel La Corte / Associated Press

OLYMPIA — Voters will have their say in November on a measure designed to make it easier to prosecute police for negligent shootings, the Washington Supreme Court ruled Tuesday.

But in a split ruling with multiple dissents, the justices decided to keep a compromise bill preferred by law enforcement, advocates and many lawmakers off the ballot.

The decision concerned Initiative 940, which was submitted to the Legislature earlier in the year after supporters collected nearly 360,000 signatures. The measure is designed to improve police training in de-escalation tactics and eliminate a requirement that prosecutors prove officers acted with malice to get a conviction in negligent shootings.

Law enforcement groups objected to some of the initiative’s provisions, however, and both sides came together with lawmakers to craft a compromise. The Legislature then passed the original as well as a bill to amend and replace it with the compromise language.

That was unprecedented. Under the state Constitution, lawmakers can approve such initiatives as written; reject or ignore them, in which case they appear on the November ballot; or propose an alternative to appear alongside the original on the ballot.

In this case, the Legislature crafted a fourth option: It passed the original — Initiative 940 — as well as a law to amend it with the compromise language.

None of the justices said the compromise could stand as law, as the Legislature intended. The debate among them was whether the original measure would take effect; whether it alone would go to the voters; or whether it and the compromise would go to the voters.

A 5-4 majority said the original, but not the compromise, must go on the ballot; otherwise, they said, voters would be deprived of their constitutional right to vote on the original measure so many of them had signed.

“If the Legislature could amend initiatives immediately upon enactment, this carefully drawn balance of legislative power between the Legislature and the people would be destroyed,” Justice Sheryl Gordon McCloud wrote in the lead opinion.

Frequent initiative promoter Tim Eyman, who sued to challenge the Legislature’s action, praised the ruling.

The state Supreme Court “has unanimously repudiated the Legislature’s unprecedented attempt to corrupt the initiative process,” he said in an emailed statement. “Not a single justice agreed that the Legislature could do what they wanted to do.”

Four justices — Gordon McCloud, Charles Wiggins, Steven Gonzalez and Mary Yu — said the compromise amendment was invalid, but the original initiative should stand as law without a public vote, because the Legislature passed it.

Four other justices — Mary Fairhurst, Debra Stephens, Charles Johnson and Susan Owens — said both measures should be placed on the ballot.

The decisive vote came from Justice Barbara Madsen. She said she would have sent both measures to the ballot, except that the compromise measure contained a provision rendering it invalid if the original measure was subject to referendum.

“It would be absurd to require that a void proposal be placed on the ballot for a vote of the people,” she wrote.

Heather Villanueva, the campaign manager for Initiative 940, said its supporters are focused on getting it passed in November. Then, however, they expect to work with police groups and others on the compromise language, which includes a clarification that officers must render first aid when it’s safe to do so, and adds some protection for officers acting in good faith.

“We’ve built the relationships with law enforcement,” Villanueva said. “As long as we’re in cooperation mode, we should be in good shape to pass these policies.”

In a written statement, Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs, said police agencies also hope to see the compromise language adopted.

“We respectfully recommend a vote against the ballot measure to allow the legislature to re-enact the improved total package of reforms in 2019,” he said.

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