Eyman v. Wyman

• Decision Date: 28 August 2018
• Docket Number: No. 95749-5,95749-5
• Citation: 424 P.3d 1183,191 Wash.2d 581
• Parties: Tim EYMAN and Michael J. Padden, Respondents/Cross Appellants, v. Kim WYMAN, in her capacity as Secretary of State, Defendant, The Washington State Legislature; and De-Escalate Washington, Appellants/Cross Respondents, Cyrus Habib, in his capacity as Lieutenant Governor, Intervenor.
• Court: Washington Supreme Court

191 Wash.2d 581

424 P.3d 1183

Tim EYMAN and Michael J. Padden, Respondents/Cross Appellants,

v. Kim WYMAN, in her capacity as Secretary of State, Defendant,The Washington State Legislature; and De-Escalate Washington, Appellants/Cross Respondents,Cyrus Habib, in his capacity as Lieutenant Governor, Intervenor.

No. 95749-5

Supreme Court of Washington.

Filed August 28, 2018

Noah Guzzo Purcell, Washington Attorney General's Office, 1125 Washington St. Se., Po Box 40100, Olympia, WA, 98504-0100, Jeffrey Todd Even, Po Box 40100, 1125 Washington St. Se., Olympia, WA, 98504-0100, Attorney at Law, 1125 Washington Street, Po Box 40100, Olympia, WA, 98504-0100, Megan Lin, Attorney at Law, 3015 Maringo Rd. Se., Olympia, WA, 98501-3465, Rebecca R Glasgow, Attorney General's Office, Po Box 40100, 1125 Washington St. Se., Olympia, WA, 98504-0100, Callie Anne Castillo, WA State Attorney General Office, 1125 Washington St. Olympia, WA, 98504-0100, for Appellant/Cross-Respondent.

Joel Bernard Ard, Immix Law Group PC, 701 5th Ave. Ste. 4710, Seattle, WA, 98104-7074, David Knox Dewolf, Albrecht Law PLLC, 421 W Riverside Ave. Ste. 614, Spokane, WA, 99201-0402, Matthew C Albrecht, Albrecht Law PLLC, 421 W Riverside Ave. Ste. 614, Spokane, WA, 99201-0402, Paul J. Lawrence, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, Gregory J Wong, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, Claire Ellen McNamara, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Respondent/Cross-Appellant.

Abha Khanna, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3099, David A Perez, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3099, for Appellant Intervenor(s).

Robert Eugene Mack, Smith Alling PS, 1501 Dock St., Tacoma, WA, 98402-3209, Michael E McAleenan Jr., Smith Alling P.S., 1501 Dock St., Tacoma, WA, 98402-3209, Amicus Curiae on behalf of Washington Association of Sheriffs and Police Chiefs, Washington Council of Police and Sheriffs, The Fraternal Order of Police.

GORDON McCLOUD, J.

¶ 1 The people of the state of Washington exercised their constitutionally guaranteed initiative power by referring Initiative 940 (I-940), an initiative concerning police reform, to the legislature. The legislature voted to enact it. The enrolled bill doctrine—a doctrine that ensures judicial respect for the legislative branch—bars this court from second-guessing the legislature's own declaration that it validly enacted that bill into law. Specifically, the enrolled bill doctrine bars this court from invalidating the enrolled I-940 based on pure speculation about whether the legislature would still have enacted I-940 if it had not passed ESHB¹ 3003 first. I-940 passed; the judiciary lacks the power to treat it as "not passed."

¶ 2 The legislature also passed a conditional bill, ESHB 3003, purporting to prospectively amend I-940 if it passed later—in this case, just a few minutes later. But that conditional, prospective bill violates the explicit language and carefully constructed allocation of legislative power contained in article II, section 1 of the Washington Constitution. That section of the constitution bars the legislature from amending an initiative during the same regular legislative session in which that initiative is first considered. The legislature might certainly disagree with an initiative and "propose a different one dealing with the same subject" to the Washington voters. WASH. CONST. art. II, § 1(a). But the legislature did not make such a "propos[al]" in this case, and the constitution does not empower a court to compel the secretary of state to put a nonproposal like ESHB 3003 on the ballot.

¶ 3 I would therefore reverse the superior court in part and vacate the writ of mandamus compelling the secretary of state to place I-940 on the ballot. A majority of this court, however, disagrees. For that reason, the decision of the superior court to issue a writ of mandamus compelling the secretary of state to place I-940 on the ballot is affirmed.

OVERVIEW OF THE CASE

¶ 4 The Washington State Constitution vests the power to make laws in the legislature. But it also reserves some power to make laws in the people: the power to initiate laws directly, through initiatives to the people for election, and the power to initiate laws indirectly, through initiatives to the legislature. Id.¶ 5 This case concerns the indirect legislative process. De-Escalate Washington referred I-940, regarding police reform, to the legislature for consideration during the 2018 regular legislative session. Article II, section 1(a) provides that once an initiative is certified to the legislature for consideration, the initiative "shall be either enacted or rejected without change or amendment by the legislature before the end of such regular session." If the legislature fails to enact the certified initiative without change or amendment before the end of the regular session, the initiative "shall be submitted by the secretary of state to the people for approval or rejection at the next ensuing regular general election" along with any alternative measure proposed by the legislature. Id.

¶ 6 In this case, the legislature "enacted" I-940, and it did so before the end of "such regular session." The parties focus their dispute on the impact of another bill enacted during that same regular session, ESHB 3003. ESHB 3003 was enacted right before I-940. It is entitled "AN ACT Relating to law enforcement; amending [creating and amending statutes and provisions of I-940]" and it purports to prospectively amend I-940 if I-940 were to pass in the future. LAWS OF 2018, ch. 10, § 10.² The first question for this court is whether the legislature enacted I-940 "without change or amendment ... before the end of [that] regular session," since the legislature also enacted ESHB 3003 in the same session. WASH. CONST. art. II, § 1(a). The second question is whether I-940 must appear on the November ballot either alone or with ESHB 3003.

¶ 7 I think it is clear that I-940 and ESHB 3003 were both validly enacted, despite the fact that ESHB 3003 purported to conditionally and prospectively amend I-940 before I-940 was enacted. I therefore conclude that neither I-940 nor ESHB 3003 may appear on the November ballot. But ESHB 3003 is invalid for a different reason: article II, section 1(a) of our state constitution bars the legislature from amending I-940 during the same session in which it was enacted, and ESHB 3003 purports to do just that. I would therefore vacate the writ of mandamus issued by the trial court to compel the secretary of state to place I-940 on the ballot.

INITIATIVE HISTORY

¶ 8 When the Washington State Constitution was ratified in 1889, it vested all legislative power in the legislature. The constitution did not reserve any authority in the people to enact or repeal laws directly. But around that time, a deep-seated distrust of representative legislative bodies began to grow among the American people in general and Washington labor groups in particular. State ex rel. Berry v. Superior Court , 92 Wash. 16, 22, 159 P. 92 (1916). By the early 1900s, the people's distrust for their legislative representatives had developed into a national movement toward establishing the people's right to seek direct legislation through initiatives and to repeal laws through referenda. Id.

¶ 9 By the beginning of the 1900s, that movement toward direct legislation had arrived in Washington. Claudius O. Johnson, The Adoption of the Initiative and Referendum in Washington, 35 PAC. NW. Q. 291, 295 (1944). Establishing direct legislation in Washington required a constitutional amendment; this in turn required a supermajority of legislators in the house and senate to pass the amendment. WASH. CONST. art. XXIII. To get these votes, community leaders from the Washington State Grange and other labor organizations began demanding that individual legislative candidates pledge their support for direct legislation and constitutional amendments by the people and for a constitutional amendment securing those rights. Id.

¶ 10 After more than a decade, these groups gained partial success: they secured direct legislative powers in Washington, but not constitutional amendment powers. The critical years were 1911-12. In 1911, an informal coalition of labor leaders from the Washington State Grange, the Direct Legislation League of Washington, the Washington State Federation of Labor, and the Farmers' Union banded together to coordinate and intensify their efforts to place direct legislative and constitutional amendment powers in the people. Johnson, supra, at 299; For Direct Legislation, SEMI-WKLY. ABERDEEN HERALD , Sept. 28, 1911, at 1; Henry K. Ensley, Operation of the Initiative and Referendum in the State of Washington 7 (1938) (unpublished M.A.P.S. thesis, State College of Washington) (on file with the Washington State Library). During the 1911 legislative session, the coalition "met each evening [in Olympia,] ... planned its work, reported on duties assigned, [and] centralized efforts where needed." Report of the Joint Legislative Committee Covering Session of 1911, THE LAB . J., Jan. 19, 1912, at 1. The coalition sought the recall of judges; the direct election of delegates to the national convention; the direct election of United States senators; the passage of an efficient corrupt practices act; the right of the people to seek constitutional amendments through direct legislation; and most relevant here, the initiative, referendum, and recall powers. For Direct Legislation, supra.

¶ 11 The coalition failed to persuade the legislature to enact a direct constitutional amendment process. But the coalition mostly succeeded in persuading the legislature to give the people a right to initiate and repeal statutes. Indeed, the 1911 legislature enacted the coalition-backed direct initiative and referendum bill—House Bill 153—with only a...