Required reading: Glen Morgan reports on Friday’s court victory on initiative process

Eyman wins lawsuit against State, exposing unconstitutional effort by legislature, saves initiative process

By Glen Morgan – April 23, 2018

Tim Eyman (Right) wearing his signature orange t-shirt supporting his next initiative sits in the courtroom on Friday next to his attorneys

 

Thurston Superior Court Judge Schaller listening to Pacifica Law attorney for I-940 sponsors

Tim Eyman, well known initiative sponsor, won an overwhelming and decisive victory in Thurston County Superior Court on Friday. His lawsuit was simple and clear, and his defense of the Washington State Constitution was solid. The Attorney General’s effort to defend the unconstitutional action by the Washington State Legislature was feeble and Thurston Superior Court Judge Schaller’s carefully articulated and clear ruling from the bench will become legal precedent for future reference. The constitutional protections for initiatives to the legislature will stand as written. It was a solid reminder to the legislators in Olympia to ignore the Constitution in the future (Watch entire hearing on TVW here)

Background, Initiatives, and the State Constitution

The lawsuit involved a citizens petition to the legislature called I-940, which was sponsored by a political organization called De-Escalate Washington. The general goal of the initiative was to reduce unlawful police shootings, provide “de-escalation” training for law enforcement, and to change the standards under which law enforcement could be held liable for unnecessary use of force. About 360,000 signatures were gathered for this initiative, easily qualifying it for the ballot if the legislature refused to pass it as law. However, the legislature which is controlled by the Democratic Party in both chambers for the first time in recent years, decided to not follow the clear requirements in the Washington State Constitution for initiatives.

In the Washington State Constitution, in Article II, Section 1a, there are only three options the legislature can follow when they receive an initiative like this.They can do nothing, and it will be on the ballot in November for the people to decide. They can vote the initiative (as written) into law. Or, they can propose an alternative to the initiative and put both the alternative and the original initiative on the ballot. The legislature is expressly prohibited from amending or editing the initiative. However, for the first time in state history (at least since the initiative power has been granted to the people by amendment to the state constitution in 1911), the legislature decided to violate the constitution and amend the initiative, with the cooperation of the initiative sponsors. This was new territory.

 

Democratic Caucus leaders chose to ignore everyone who warned them about following the Constitution.

The Republicans warned the Democratic Party leadership at the time that this was unconstitutional, but they were ignored. Interestingly enough, both political parties and the sponsors of the initiative agreed that the policy compromises were superior to the content of the original initiative. However, while the Republicans attempted to have the proposed amendment place on the ballot in November, per the constitution, the Democrats in both houses rejected that option, so the illegal amendments to I-940, as embodied in HB 3003 (linked here) were allowed to stand.

Tim Eyman properly recognized the dangerous precedent this illegal action by the legislature would create for the future of initiatives. Eyman is a prolific sponsor of initiatives, and he recognized that if this action was allowed to stand, it could effectively end the ability of the people to pass initiatives to the legislature because they would have no certainty whether the legislature would amend, edit or radically alter the very initiative that the people had worked so hard to collect signatures and get to the legislature in the first place. It didn’t matter that the final bill (HB 3003) was better policy than the original initiative (I-940). Tim Eyman filed suit last month. (See motion for summary judgement)

There are winners and losers.
Here are some winners:

Tim Eyman is often referred to as the “initiative king” of Washington State

Tim Eyman is the biggest winner in this case. He was willing to speak truth to power, and point out that the emperor had no clothes. Effectively, he is the guy who put I-940 on the ballot without gathering a single signature. Eyman’s actions even generated national attention. It should be increasingly clear why Washington State’s Attorney General, Bob Ferguson is attempting to impose a permanent ban on Eyman’s ability to participate in the political process in an unrelated campaign finance lawsuit (see AG press releases linked below). While Eyman doesn’t always succeed in his efforts, he is clearly unafraid to try. Eyman filed the original complaint pro se (meaning he represented himself without an attorney), but Seattle attorney Joel Ard stepped up pro bono (meaning he represented Eyman for no charge) and also was a high profile winner in this case. (See closing arguments)

Secretary of State Kim Wyman’s office came out looking like a winner as well. While the lawsuit is titled “Eyman v. Wyman” due to the nature of which agency must defend on issues related to initiatives, the Secretary of State’s response to this lawsuit provided clear information to Judge Schaller that the legislature’s actions had created doubt and confusion about the initiative process. The Secretary of State’s careful position of neutrality (“just confirm what the rules really are”) also appeared far more mature and reasonable than the AG’s effort to defend the indefensible. In the courtroom, the counsel for the Secretary of State wisely chose to make no oral arguments, and they let the fireworks fly between other parties. (See Sec. of State – Final Response linked here)

 

Republican Senator Mike Padden, who intervened in the case with Tim Eyman also came out a winner. He was represented by former candidate for Washington State Supreme Court DeWolf, and being on the winning side of this lawsuit reflected well on Senator Padden. As the Minority Chair on the Law and Justice Committee in the State Senate and a former judge himself, Senator Padden was a logical and formidable intervener in this case. He was one of the most vocal Republicans in the Senate attempting to convince the Democratic Majority to follow the Constitution.  While he was ignored by the majority party at the time, they may consider listening to him a bit more in the near future.

Thurston County Superior Court Judge Schaller also must be recognized as a winner in this case. Judges at this level are often overwhelmed with the daily grind of criminal and civil litigation which goes largely unnoticed except by the parties involved. Rarely do judges get the opportunity to adjudicate a precedent setting case involving such a clear constitutional challenge. The facts were not in dispute, and it was an opportunity to rule on the law. This is one reason why at least one other judge (without robes) was in the visitor’s gallery watching the case unfold. It is also rare to have TVW cameramen and so many reporters in the courtroom. Her thoughtfully worded ruling indicated a careful reading of all the briefs and most observers recognize it will likely stand on appeal.

Judge Christine Schaller is no stranger to high profile constitutional challenges, and her experience probably helped her prepare for this case. Schaller first ran for Thurston Superior Court Judge in 2012. She was a resident of Pierce County. Schaller’s eligibility for judge was challenged in a case called Parker v. Wyman. Under the Washington State Constitution, a person is eligible for the office of superior court judge if he or she has been admitted to practice before the courts of record in this state (See article IV, Sec 17). However, state law indicated that a judge must reside in the county (RCW 42.04.020). As Schaller and Thurston County Auditor Wyman successfully argued at the time, the Constitution trumps the state law. This decision was upheld by the Washington State Supreme Court later that same year.

Here are the losers:

The Democratic Caucus leadership in both houses were the biggest losers. Their sloppy and illegal actions unnecessarily created the grounds for this litigation in the first place. They were warned, repeatedly, by the Republican Caucus leadership at the time and most likely their own counsel and non-partisan staff (who usually know the Constitution, laws and rules better than the elected officials), but they arrogantly decided to ignore these warnings. The Republicans even tried to follow the Constitution and take the proposed HB 3003 language and put it on the ballot as an alternative, but the Democratic Caucuses in both houses narrowly defeated this effort. This was particularly foolish because the remedy to avoid violating the constitution was so simple – the proposed amendments to I-940 were drafted and well written in HB 3003 – they could have been easily submitted as an alternative on the November ballot.  The shame was both parties, and even the original ballot sponsors, agreed on the reform amendments as better policy. Now, thanks to sloppy, arrogant and illegal actions by the Democratic Caucus leadership, the voters will only get to vote on the flawed I-940.

The Attorney General’s office did not look good in this case either and they must be viewed as a loser on multiple fronts.  First, the legislature’s actions were defended by the AG, and the argument was weak and unconvincing. Secondly, it can’t be ignored that while the AG is floundering in an effort to defend the indefensible in one courtroom, the very same guy who is successfully calling out the inability of the legislature to follow the constitution is Tim Eyman who the AG is trying to ban from the political process in another case. Something really stinks in the AG’s office, and using the office for partisan attacks on political enemies like Trump, Eyman, and others is wearing thin. There is a reason why Washington State Bob Ferguson was voted most annoying local person by Dori Monson Seattle talk radio listeners last year (link here).

AG Solicitor General Jeff Evan represented the Legislature on Friday

Pacifica Law Group was also a loser here. They were representing the sponsors of I-940, and they were sitting with the AG attorney (as they often do). However, their attempt to defend the legislature’s failings was even worse than the AG’s efforts. At one point, their attorney even attempted to argue with Judge Schaller and tell her what she could and could not decide, which is usually not a winning strategy in the courtroom.

The sponsors of the initiative probably view themselves as losers in this case, but they should not. Their initiative is going before the voters on the November ballot, and it is likely to be popular, even if it is seriously flawed.  This is the first time this author has ever witnesses an initiative sponsor disappointed their initiative was going before the voters. Their efforts were not in vain, and while the initiative is not optimal policy as written, it seems like they have proven bipartisan support and cooperation with law enforcement in finding compromise legislation (as HB 3003 proved) that can attain the policy goals they ultimately desire. I-940 has many flaws, but the voters at least get a choice to vote on the initiative in November.

One person really can make a difference if they are willing to stand up

This case demonstrates that one person can indeed make a difference. Tim Eyman demonstrated, once again, if you are willing to take the chance, put in the effort, and stay focused, you can have successes. This case should be a reminder to the many others who recognized the legal failures of the legislature, but who were unwilling to do anything about it, that someone has to stand up and confront. Hand wringing and whining from the bleachers and at political fundraisers will not change the score.  Someone has to do the hard work and take the risk to confront the bad actors. You won’t always win, but it is the only way we can ensure our freedoms, our laws, and our future don’t get crushed by sloppy, greedy, and dishonest politicians.  Eyman deserves to be recognized for his willingness to afflict the powerful, speak truth, and back up his rhetoric with action. Friday was a great demonstration of how one person really can make a difference.

Top 5 Contributors: Suzanne Burke, Puget Sound Chapter NECA PAC, Andrew Skotdal, Tim Eyman, Thomas O’Brien

© 2019 Permanent Offense

 

© 2019 Permanent Offense