I-940 should go on the ballot, but not the changes, judge rules

OLYMPIA – Voters should get a chance to decide whether they want to approve Initiative 940, which puts new rules on the use of deadly force by police, a Thurston County judge said Friday. But they shouldn’t get a chance to vote on the alternative approved by the Legislature in an effort to improve the initiative.

The Legislature violated the state Constitution in the way it tried to amend I-940, sponsored by the group De-Escalate Washington, Superior Court Judge Christine Schaller ruled. Lawmakers have three options under the Constitution when presented with the initiative, and they decided to try a fourth.

“I don’t think the Legislature was acting in bad faith,” Schaller said. “It was enacting a law that it thought was appropriate.”

But the unprecedented method lawmakers came up with doesn’t pass constitutional muster, she said.

The original initiative, which sets up new procedures for reviewing police shootings to determine whether deadly force is warranted, was opposed by law enforcement. Lawmakers got initiative sponsors, representatives of law enforcement and other interested groups together to develop a set of changes that all could support.

But under the Constitution, Schaller said, the Legislature can’t amend an initiative that has been submitted to it with enough signatures. It can pass the initiative as is; it can ignore the initiative, which means it goes to voters in November; or it can pass an alternative, which means voters get the original and the alternative on the November ballot.

The Legislature put the changes into a separate bill, HB 3003, which it passed and had Gov. Jay Inslee sign before passing I-940.

“Clearly, 3003 changed I-940 in scope and effect,” Schaller said. It made changes to several sections, and added other sections.

She rejected an argument by the state that those are mere refinements to I-940. “When legislators voted to enact I-940, they knew it was already amended,” she added.

Tim Eyman, a regular promoter of initiatives who brought the initial legal challenge, had asked that I-940 be put on the November ballot along with an alternative created from HB 3003. But Schaller said she couldn’t do that because because the Senate and House had both rejected a move to turn the HB 3003 into a ballot alternative.

In a ruling that will ultimately decided by the state Supreme Court, she ordered I-940 to go on the ballot by itself.

That’s an even better outcome for the initiative process because it protects the limitation on three alternatives for a ballot measure sent to the Legislature, Eyman said. “We were trying to split the baby a little bit” by suggesting both go on the ballot, he said.

Representatives of De-Escalate Washington said they were disappointed in the ruling, which negated the work all sides did in coming up with improvements to the initiative on use of deadly force laws. The group had argued that the initiative, as amended, should stand, but if the amendments were thrown out, the initiative itself should be declared law.

Heather Villanueva, of De-Escalate Washington, said the group will work to pass I-940 and try to hold the coalition that agreed to the changes together to pass the changes in the 2019 session. To do that, however, they’ll need a two-thirds majority in both chambers to pass the amendments. One of the reasons the Legislature took the route it took in the session was HB 3003 only needed a simple majority to pass.

Sen. Mike Padden, R-Spokane Valley, who joined Eyman in challenging the amended initiative, said he would urge voters to reject I-940 in the fall because of the restrictions it places on law enforcement, which will need that supermajority to be changed for the next two years.

Padden agreed that there isn’t a fourth way for the Legislature to handle initiatives, but he was surprised that Schaller didn’t agree to place the amendment on the ballot as an alternative. He proposed the amendment to turn HB 3003 into a ballot alternative that the Senate rejected, which Schaller cited as a reason why she couldn’t now send that provision to voters.

He agrees with initiative sponsors and other lawmakers the alternative is better, but if it can be put on the ballot, that would take approving it in a special session, he said.

The state filed notice of an immediate appeal, although a spokeswoman for the attorney general’s office said it was a general notice without listing what would be challenged. The secretary of state’s office said it needs a final ruling by late September to know what, if anything, will go on the ballot.