Washington state Deputy Solicitor General Jeff Even (right) speaks before the Washington Supreme Court in Olympia, during arguments Tuesday over whether state lawmakers acted constitutionally when they passed a new state law designed to improve police training in de-escalation tactics and make it easier to prosecute officers for negligent shootings. The question of whether Washington voters will have their say on the measure designed to make it easier to prosecute police for negligent shootings might not be over, after all; the day after ruling that Initiative 940 should appear on the November ballot, the court requested briefings by the end of the day Wednesday, about how the justices’ various opinions should be interpreted. (Ted S. Warren/Associated Press)

Washington state Deputy Solicitor General Jeff Even (right) speaks before the Washington Supreme Court in Olympia, during arguments Tuesday over whether state lawmakers acted constitutionally when they passed a new state law designed to improve police training in de-escalation tactics and make it easier to prosecute officers for negligent shootings. The question of whether Washington voters will have their say on the measure designed to make it easier to prosecute police for negligent shootings might not be over, after all; the day after ruling that Initiative 940 should appear on the November ballot, the court requested briefings by the end of the day Wednesday, about how the justices’ various opinions should be interpreted. (Ted S. Warren/Associated Press)

Editorial: Lawmakers’ shortcut creates headaches for many

Even the state justices are foggy on how to proceed with a measure on police use of deadly force.

By The Herald Editorial Board

Often the longest. most convoluted journeys start with a bad shortcut.

That much is clear following a decision Tuesday by the state Supreme Court as to whether a citizens’ initiative regarding the use of deadly force by police should go on the ballot, whether compromise legislation should join it on the ballot or if voters should consider neither and the initiative simply be made law.

In Tuesday’s ruling, it appeared the court — in a split decision — could find only a 5-4 consensus that believed Initiative 940 should go on the ballot. By Wednesday, however, after supporters of I-940 lodged an emergency motion, the court said it would ask those who filed a suit against the legislative maneuver behind the complaint — initiative promoter Tim Eyman and state Sen. Mike Padden, R-Spokane Valley — to respond to the motion by the end of the day as to how the justices’ various opinions should be interpreted, the Associated Press reported.

Some background for those already holding their heads:

I-940, an initiative to the Legislature advanced by the group De-Escalate Washington, would remove the immunity that law enforcement officers have in some cases of deadly use of force, eliminating the current standard that requires prosecutors prove malice on the part of police. It also would require police receive violence de-escalation and mental health training and mandate independent investigations of police use of deadly force.

In response lawmakers worked with De-Escalate Washington and some law enforcement groups to make amendments to the initiative’s language, drafting HB 3003. The legislation tightened language requiring prosecutors 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. It also included provisions for training, independent investigations of police shootings and required the state to reimburse officers for reasonable defense costs if an officer was found not guilty or charges were dismissed.

The devil wasn’t in the details, however, but in the sausage-making.

The state constitution constrains lawmakers to three choices when addressing initiatives to the Legislature: 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.

Instead, lawmakers invented a fourth option: adopting the initiative, then amending it in the same session.

Court justices were in agreement that the Legislature’s compromise bill couldn’t stand as law and represented a threat to the more-than-a-century-old citizen initiative process.

“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 leading opinion.

Had the lawmakers’ tactic been allowed to stand — paved as it was with good intentions — it could have created a precedent that would have allowed the Legislature to easily toy with any such measure sent to them, simply amending or rewriting initiatives to any degree they see fit, forcing initiative supporters back out to gather more signatures if they disagreed with the changes.

Four justices held that the original initiative should be upheld as law. Another four justices were prepared to put both the initiative and HB 3003 on the ballot and allow voters to choose between them, but Justice Barbara Madsen noted that HB 3003 contained a provision that invalidated it if I-940 also were included on the ballot.

Rather than save everyone the trouble of an election, lawmakers have instead presented the Supreme Court with a legal conundrum and will potentially leave voters with a tough choice to make this fall.

The irony is that both sides of the deadly force issue appear to agree on the remedies needed, but the Legislature’s solution has obscured the path forward.

De-Escalate Washington told the Associated Press on Tuesday it would campaign for I-940’s passage, and would then work with law enforcement groups and others to restore the compromises that HB 3003 sought.

But the Washington Association of Sheriffs and Police Chiefs, which also wants to see the negotiated language adopted, is recommending a vote against I-940, preferring to see the Legislature adopt the compromise.

Again, the complication is contained within the constitution’s language on initiatives.

If I-940 is adopted by voters, it cannot be amended or repealed by the Legislature for two years, unless both House and Senate vote to do so by a two-thirds supermajority. HB 3003 passed the House, 73-25 (74 percent), but managed only a one-vote majority in the Senate, 25-24.

As with I-1639, if I-940 appears on the ballot, The Herald Editorial Board will reserve judgment on its recommendation to voters until after it has met with representatives of the respective campaigns in coming weeks.

But it will up to voters to decide how much to trust that lawmakers will follow through after they’ve already tried to cut corners on the state constitution.

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