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I-940 and HB 3003: From unconstitutional to a mockery in twenty-four hours

Jim Boldt, President of Duckabush Communications/Public Affairs, wrote the following opinion piece on HB 3003 and I-940. 


The Beef:

Initiative 940, an initiative to the legislature, has been before the legislature all session. Until last night, action on the document primarily involved negotiations between stakeholders with an intention of creating an alternative lest it slip to the ballot with no option. As explained in a post here yesterday, the three options for the legislature were:

1. Pass it into law, codify it

2. Do nothing and I-940 would appear on the fall ballot for the general public to vote for, or against,

3. Draft an alternative to appear with the initiative. An alternative that could have been explained as a compromise of respectful legislative give-and-take and probably would have received a wide, stakeholder pleading that voters choose it over the initiative.

Initiatives to the legislature CANNOT BE AMENDED AND PASSED, CANNOT BE AMENDED AND PLACED ON THE BALLOT. Article II, Section 1.

The Carrot:

So what did the legislature do? First yesterday afternoon, on a nearly partisan vote (one Senate Democrat voting with the Republicans), the Senate voted to pass HB 3003 which is most likely an unconstitutional attempt to amend a law that did not exist, the verbiage of I-940. How legislators could vote to amend a ghost law, and why no one called for a point of order to produce the statute which was being amended is fourth denominational. So down to the Governor goes HB 3003, which allegedly amends the initiative which had not passed the legislature, yet. What?

The Potatoes:

Now the Governor is implicated. He signed HB 3003, which amends a law that does not exist. And, purports to amend the initiative to the legislature, which under provision of Article II, Section 1 of the State Constitution, cannot be amended, period. Drew Shirk, of the Governor’s office, sent out a letter to the legislature wherein he wrote that he had the, “…honor(ed) to advise you that on March 8, 2018, Governor Inslee approved…HB 3003…” It gets better. Later in the day the same Senate passed I-940 which had already passed the House and requires no Governor’s signature for codification. I guess it is law, and quietly mated with HB 3003. How does that work?

The Stew:

A review of the state’s use of deadly force laws was in order and overdue according to a lot of stakeholder groups who participated in the year’s long task force of the same name. What a stew. We have an initiative to the legislature which is codified. And, allegedly, even though it passed and was signed before the legislature passed the initiative, an amendment that is supported by most of the players…not all.

It appears that the hope of the legislature is that no one will question the upside-down, probably unprecedented, unconstitutional process that was used to avoid having two proposals on the fall ballot.

The Secretary of State, responsible under the Constitution to put the initiative on the fall ballot, has some thinking to do. And if she doesn’t certify it for the ballot, some explaining to do. Does she put the initiative on the ballot? It passed the legislature, so is it already law? And what will be codified? The blend of the two? The initiative as delivered to the legislature or some retroactively amended proposal, a stew of I-940 and HB 3003? Will she determine that HB 3003 is an alternative to I-940 and they both go on the ballot? But wait, the Governor signed HB 3003, so it is already law? But, it amended an initiative, a section of code that was not law yet. OH MY, what a stew.

Too Many Cooks In The Kitchen:

Maybe, as one conspiracy theorist mentioned, it was a grand plan. The legislature works in good faith to get an alternative. When they get close, but not there, they pop out HB 3003 knowing that if they pass it, there will be so many questions no one will know what should go on the ballot and for the second time in recent history (McCleary) the legislative branch will give up a little more separation of power to the court. Case law provides that the court can determine if a bill is an alternative. The cases reflect the court’s determination based on the content and intent of the proposed amendment, not the process.

And, what if someone files that little question with Thurston Superior Court?

“Behind You:” The Warning In A Kitchen To Avoid A Collision

Alan Hayward, former Chief Clerk of the House of Representatives and a student of our State Constitution, state history, and legislative process put it well in his Facebook post, pasted here with permission:

“As a fan of the legislative process over the Initiative process I kind of wish the plan was constitutional. But alas, when someone tells you they have come up with an idea that sounds to good to be true. It probably ain’t true.

The legislature passed ESHB 3003 as an amended Initiative 940. They argue that neither Initiative 940 or the alternative bill ESHB 3003 will appear on the 2018 ballot because the issue had been solved. They do recognize the constitution requires the an Initiative passed by the legislature as they claim to have done with I-940 must be available for voter referendum.

Under the legislature’s argument the only way that the proponents of Initiative 940 can get their ballot certified initiative on the 2018 ballot is if they now file a referendum petition and gather the necessary signatures for that referendum to go forward.

It is absurd to suggest that if an Initiative has qualified for the ballot as I-940 has, and the legislature did not pass it without amendment, that the only way supporters can get a clean vote on their initiative is to file more signatures. While I might personally like the result in this instance, the process is both absurd and unconstitutional.

I believe that the Supreme Court may very well order, if it is asked to rule, that both the I-940 and ESHB 3003 will appear on the 2018 ballot, with the latter being the alternative to the Initiative.”