By The Herald Editorial Board
Make note of the date, because we’re going to agree with Tim Eyman on something.
Stopped clocks, blind pigs and acorns — and all that — but the Mukilteo initiative promoter is correct that the Legislature acted unconstitutionally when it amended an initiative that sought to reform the deadly force standard for police shootings.
The issue stems from the Legislature’s handling of Initiative 940, which sought to change state law that had required prosecutors prove a police officer acted with malice to find guilt in an officer-involved shooting.
With days remaining before the end of the session earlier this month, the Legislature passed House Bill 3003, drafted as part of a compromise among proponents of the initiative, De-Escalate Washington, and some — although not all — law enforcement groups, including the Washington Association of Sheriffs and Police Chiefs and the Fraternal Order of Police.
HB 3003 eliminates the malice standard and asks prosecutors to review whether a reasonable officer in the same situation would have believed deadly force was necessary to prevent injury or death to police or others. The bill also includes provisions for training, independent investigations of police shootings and requires the state to reimburse officers for reasonable defense costs if an officer is found not guilty or charges are dismissed.
As adopted and signed by the governor, HB 3003, is arguably better legislation than was provided in I-940, but that’s not the issue.
Eyman, who filed suit against Secretary of State Kim Wyman on Monday in Thurston County Superior Court, doesn’t mention any objection or support for I-940 or HB 3003; he addresses only the manner in which the compromise was adopted. Eyman wants Wyman to place both I-940 and HB 3003 on the ballot and let voters choose.
The court should direct Wyman to do so. This is simple: Voters should be trusted, as the Constitution provides, to make the choice between the initiative and the lawmakers’ alternative.
In reviewing initiatives to the Legislature, lawmakers are constrained by the state Constitution to three courses of action: They can approve the initiative as written; reject it or do nothing, in which case the initiative appears on the ballot; or they can propose an alternative and place it and the initiative on the same ballot and allow voters to choose which will become law, if either.
A legal opinion from the state attorney general’s office in 1971 makes clear that any changes to an initiative from the people must appear alongside the original initiative on the ballot. Even simple corrections to initiatives can’t escape that requirement, an Associated Press report noted.
Lawmakers, however, invented a fourth option that amended and adopted the original initiative and basically bypasses the voters. In an attempt to get around the Constitution, the legislation takes effect only if no referendum is filed by June to challenge it.
But that requires supporters of the original initiative to go back out and gather signatures a second time, creating a new hoop for initiative backers to jump through. That’s not likely here, since De-Escalate Washington was part of the compromise, but the concern is for the precedent that this could set.
Eyman is correct — yes, we said it again — that lawmakers could now use the same tactic against any future initiative that it reviews; lawmakers can simply amend or rewrite initiatives to any degree they see fit, adopt them and force supporters back out to gather more signatures if they disagree with the changes.
And lawmakers seem to know there’s a problem here that threatens the viability of initiatives, a democratic process that has been treasured by Washington voters for more than 100 years.
“I have incredibly grave concerns that we are creating a convoluted process for getting around a constitutional right,” Sen. Joe Fain, R-Auburn, told the Associated Press, before passage.
Sen. Maralyn Chase, D-Edmonds, was more blunt in admitting the unconstitutionality of the move, even as she gave it her approval.
“This is a worthy endeavor,” Chase told the AP. “I think it takes precedence over what the Constitution says about initiatives.”
No, senator; worthy endeavors do not take precedence over what the Constitution says about initiatives.
Eyman has made a living out of initiatives, and he’s had his own tangles with the state Constitution. Of the 20 or so he’s put on the ballot, 10 were passed by voters, but six of those were found unconstitutional. His court challenge here, of course, is about protecting that livelihood.
But when he’s right, he’s right.
Correction: An earlier version of this editorial misspelled Sen. Maralyn Chase’s first name.
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