The Washington Supreme Court issued decisions in two cases addressing procedural mandates of the state constitution’s 1906 amendment that reserved to the people the right to legislate by initiative. In Eyman v. Wyman, addressing initiatives to the legislature, all nine justices agreed that the legislature could not adopt and amend an initiative during the same session. In Gottleib v. Wyman, addressing initiatives to the people, the unanimous Court held that neither the Secretary of State nor the courts had any authority to police and enforce the constitutional mandate that the full text of a proposed initiative appear on signature petitions.
Washington’s Initiative Amendment
Since 1906, voters in Washington can engage in direct legislation by initiative. The initiative process allows both initiatives to the people and initiatives to the legislature. If an initiative to the people gathers sufficient qualified signatures no later than four months prior to a general election, and is qualified by the Secretary of State, it appears on the November ballot.
Initiatives to the legislature are qualified prior to the start of the legislative session and are first presented for optional legislative action. The legislature may enact an initiative, may reject it including by taking no action on it, or may “propose a different [measure] dealing with the same subject.” If the legislature enacts the initiative, it becomes law. If it rejects the initiative, the measure appears on the following general election ballot. If it proposes a different measure, both the initiative and the legislature’s measure appear on the ballot, with tiered choices for voters: First whether to legislate at all, and second, which of the two measures to adopt. Notably, measures adopted by popular vote cannot be amended by the legislature within two years except by 2/3 supermajority.
Notably, in the 106 year history of the state initiative process, the legislature has not often adopted initiatives proposed to it, and only twice proposed a different measure for the fall ballot.
Eyman v. Wyman
The Secretary of State certified to the 2018 legislature Initiative No. 940, an initiative proposing changes to Washington police use-of-force and training law. After hearings on the initiative, and through discussions with initiative sponsors and representatives of state law enforcement agencies, the legislature drafted a bill amending the initiative. On the final day of the 2018 legislative session, the legislature adopted this amendatory bill. The bill expressly stated that it “amends I-940.” The legislature established that it would take effect 91 days after passage, albeit conditioned on the adoption of I-940. The bill received majority votes in both chambers, and the governor’s signature. The legislature immediately thereafter adopted I-940 by simple majority in both chambers, with the new law purportedly coming into force 90 days later, one day before the amendatory bill came into force. According to the legislature, I-940, as drafted by the sponsors and signed by several hundred thousand voters, would be law for 24 hours, after which the compromise amendatory bill, adopted a few hours earlier, would become and remain law. Neither measure would appear on the November 2018 ballot.
Prolific initiative sponsor Tim Eyman, joined by State Senator Michael Padden, sued the Secretary of State, seeking an order of mandamus that she place both I-940 and the amendatory measure on the November ballot. The Secretary of State took no position on her legal obligations. The Attorney General’s office defended the legislature’s actions as enacting both the initiative and amendatory measure, and the initiative sponsors intervened to argue in favor of both the enactment of the initiative and the amendatory measure.
Eyman and Padden argued that the legislature did not “adopt [I-940] without change or amendment.” It adopted amendments, then adopted the initiative. No member voting on the initiative could consider that the initiative would become law as drafted and certified to the legislature. As such, the “amend then adopt” strategy constituted rejection of the initiative under the constitution. Any form of rejection – ignoring it, voting it down, or this novel approach of amending it first, then adopting it – resulted in a constitutional mandate to the Secretary to place the initiative on the November ballot. The amendatory measure, which passed by majority vote in both chambers, was a “different measure dealing with the same subject,” which the constitution also compelled the Secretary to place on the November ballot.
The state and sponsors argued that the court could not entertain either argument. The “enrolled bill doctrine” limited the court to examining the face of the bill as enrolled in the legislature, and as voted on. The four corners of each document that the legislature voted on showed only that the legislature voted in favor of the exact text of I-940 and voted in favor of the amendatory bill, which would take effect later in time. The enrolled bill of I-940 did not contain amendments, and neither enrolled bill showed which had passed earlier in time. They agreed that the Court might reject such actions but only if its review of the full text of the initiative and amendment revealed an obvious attempt to circumvent the initiative power. Because of the negotiated agreement between initiative sponsors and the legislature, they argued, the amendments advanced the policies of I-940 without “needlessly contorting the legislative process.”
Eyman and Padden, in response, argued that in asking the Court to investigate and compare the policy objectives of the initiative and amendment, the state and sponsors invited their own violation of the enrolled bill doctrine, by encouraging the Court to look beyond the face of a bill that stated “this amends I-940,” and made plain on its face that it was adopted prior to a vote on I-940. If the Court first decided whether an amendment advanced the policies of an initiative before determining whether the initiative had or had not been “adopted without change or amendment,” it would exceed its proper role and ignore the plain mandate of the constitutional text.
The state supreme court ordered I-940 onto the November ballot, but declared that the amendatory bill had no force or effect. It issued three opinions and one concurrence. In an unusual structure, the court labeled the two opinions joined by five justices as to the disposition of I-940 as dissents, while it identified as “the lead opinion” a position joined by only four justices, which would have held that I-940 became law during the 2018 regular session. Ultimately, five justices agreed that I-940 was not adopted without change or amendment during the 2018 regular session, and therefore had to appear on the November ballot. Four of those same justices would have held that the amendatory act constituted a “different [measure] dealing with the same subject” and also had to appear. One justice who voted for I-940 appearing on the ballot noted that the amendatory measure contained a clause that voided the measure if I-940 did not become law during the regular session. Giving force and effect to that legislative statement, the alternative no longer had any force and could not appear on the ballot.
Four justices would have held that the legislature, by voting on a document that contained the precise text of the initiative, thereby adopted it as law in the state. It therefore should not appear on the November ballot. Those four justices also agreed that the alternative measure could not become law because the legislature, by enacting it, violated the constitutional allocation of powers between the legislature and the people established by the initiative process.
Despite the very unusual organization and labeling of the various opinions, the final order to the Secretary was clear: I-940 would appear on the November ballot, alone, for a vote of the people. The amendatory measure would not. In fact, the legislature’s position, that it had plenary power to enact and amend initiatives during a session, garnered no vote from any member of Washington’s Supreme Court.
In a final interesting footnote, the legislative Office of Code Reviser has subsequently taken the position that I-940 was adopted and is law, and that the November vote is “advisory.” As of this writing, in September 2018, it remains an unanswered question what law governs police use of force, and whether amendments to I-940, if it is adopted in the fall, require a supermajority in the legislature. At least one police officer facing legal action over use of force during the pendency of the litigation is considering a due process challenge based on the remaining open questions over the law governing police conduct in the state.
Ball and Gottlieb v. Wyman
The state constitution requires that every initiative petition circulated for voter signature contain the full text of the proposed measure. That text is constitutionally mandated to appear in three places: filed with the Secretary of State’s office prior to circulating petitions, on the petitions, and in a voter information pamphlet. In early summer 2018, sponsors circulated Initiative No. 1639, which proposes new restrictions on firearms sales and storage in the state. While the text filed with the Secretary contains strikeouts and underlines showing deletions and additions to existing law, the petitions did not. Representatives of the Second Amendment Foundation and NRA sued, seeking an order of mandamus forbidding the Secretary of State to put the initiative on the fall ballot. According to plaintiffs, the courts were required to construe the initiative enabling statutes broadly to enforce the initiative amendment, which included the full text requirement. The statute further required the text to be readable, which the petitions were not. According to the plaintiffs, the appropriate broad reading of the statute requiring the Secretary to count signatures and certify the initiative also gave her the obligation to consider whether the petitions had the full text on them, and whether it was readable. Finally, they argued, the constitutional initiative amendment was “self-executing,” so that if the legislature had declined to assign to the Secretary the obligation to police and enforce the full text requirement, the courts must do it.
The sponsors intervened, arguing that neither the secretary nor the courts had authority to police the full text requirement. They also argued that the petitions did contain all the words of the initiative, so that it complied with the requirement. Finally, they argued, the courts applied statutes implementing the initiative to put proposals on the ballot, not exclude them.
The Secretary took the position that the legislature had given her no statutory authority to take any action beyond counting the number of signatures. She did, however, request that the court exercise its mandamus authority, evaluate whether the petitions complied with the constitution and statute, and order her to exclude the initiative if it did not.
The trial court agreed with the sponsors and Secretary that the legislature had not given the Secretary any authority other than to count signatures. However, it concluded, the Court’s constitutional mandamus authority extended to policing and enforcing the requirements of the initiative amendment to the constitution, including the full text requirement, as well as the statutory requirement that the text be readable. The petitions complied with neither, and the court ordered the secretary not to include the initiative on the November ballot.
The sponsors appealed to the state supreme court. In a 9-0 decision, the court agreed that the Secretary’s authority, granted by the legislature, did not include any authority to consider whether a petition contained the “full text” of an initiative measure. It also concluded, contrary to the trial court’s view, that the courts had no authority to police or enforce that requirement. Thus, whether or not the petitions had contained the full text of the measure, and whether or not that text was readable, because it garnered sufficient signatures, it must appear on the November ballot. As a result of this decision, absent legislative action to assign reviewing authority to the Secretary of State, no petition sponsor needs to comply with the first constitutional requirement of the state constitutional initiative process.
Joel Ard practices with Immix Law Group in Seattle and, together with David DeWolf, was counsel to plaintiffs in both cases.