Court weighs lawmakers’ change to deadly force measure

The agreement was intended to end years of wrangling over an existing state law.

By Rachel La Corte / Associated Press

OLYMPIA — The Washington Supreme Court heard arguments Thursday on whether state lawmakers acted constitutionally when they passed a measure designed to improve police training in de-escalation tactics and make it easier to prosecute officers for negligent shootings.

Lawmakers approved Initiative 940 in March, but in an unprecedented move, first passed a separate bill amending the initiative that was a compromise between activists and police groups.

A Thurston County Superior Court judge said that procedure was unconstitutional and ordered that the original I-940 be placed on the November ballot. The state Attorney General’s Office appealed and argued in court Thursday that the Legislature validly enacted the amended law.

“The Washington Constitution reserves to the voters the power to propose an initiative to the Legislature, but the Legislature also has the power to legislate,” said Deputy Solicitor General Jeff Even. “This case arises at the intersection of those two sources of legislative power.”

Justice Sheryl Gordon McCloud noted the Constitution says such initiatives shall be “enacted or rejected without change or amendment by the legislature before the end of such regular session.”

Even said the constitutional language is written against a backdrop in which the Legislature has “authority to legislate.”

“If the Constitution is limiting the authority of the Legislature to amend an initiative, then I would expect to see that language occur rather explicitly,” he said.

Chief Justice Mary Fairhurst jumped in, reemphasizing the “without amendment” language.

“How much more explicit could it be than what the Constitution actually says?” she asked.

When lawmakers passed the agreement, it was intended to end years of wrangling over an existing state law that made it nearly impossible to hold police officers criminally liable.

Amid outrage over questionable police shootings, the organization De-escalate Washington gathered nearly 360,000 signatures for an initiative to the Legislature to change the law by eliminating a requirement that prosecutors prove an officer acted with malice.

Under the state Constitution, lawmakers can approve such measures 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 changes called for by police groups and supported by activists.

Mindful of the Constitution’s requirements for a public vote, however, lawmakers also said the law to amend the initiative would only take effect if no referendum was filed by June to challenge it.

Initiative promoter Tim Eyman sued, arguing that if it’s allowed to stand, the Legislature’s move would effectively abolish the people’s right to petition the Legislature by initiative. Voters could collect signatures for a measure, only to see lawmakers drastically change it. Voters would then have to collect more signatures if they want to challenge the Legislature’s version by referendum.

Eyman’s attorney, Joel Ard, told justices that both I-940 and the separate bill amending it need to be presented to the voters this November. Otherwise, he said, lawmakers have evaded their obligation.

“And with that you’ve gutted the power of the initiative to the Legislature,” he said.

He also noted a 1971 attorney general’s office opinion that says anytime the Legislature makes changes to an initiative proposed to it by the people, those changes must appear alongside the original on the ballot. The opinion also said the Legislature couldn’t simply pass a separate law altering the initiative, even to make simple corrections.

“If you’re going to adopt an initiative and then amend it, you need to have a sufficient window of 90 days between adopting and amendment to allow for the referendum to be exercised against either one of them,” he said.

The constitutional concerns were aired during the rush to pass the deadly force compromise before the legislative session ended March 8. It passed with support from both parties in the House and from majority Democrats in the Senate.

The high court will decide whether the lawmakers acted constitutionally, or whether I-940 or I-940 and the compromise proposal should go to the ballot. A timeframe for their decision is unknown.

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