Futurewise and SEIU 775 are filing a complaint in King County Superior Court this morning, asking the courts to block Tim Eyman’s I-960 from the ballot, on the grounds that it is outside the constitutional scope of the initiative process. And, well… I just gotta laugh.
I know what Timmy’s reaction will be. He’ll be outraged, he’ll tell us, at this cynical attempt to prevent the people from voting on a citizens initiative. This is insulting. It’s undemocratic. It’s unprecedented.
In fact, it is not unprecedented, and I can’t tell you how much I look forward to skewering Eyman and his sanctimonious supporters in the press and elsewhere who echo his self-righteous condemnations of the complainants and their attorneys. For if these hypocritical defenders of the status quo are truly outraged by the prospect of such pre-ballot review, they had every opportunity to speak their minds concerning a similar case four years ago, yet remained strangely silent. Indeed the most sanctimonious of the sanctimonious — the Seattle Times editorial board — actually urged the courts to bar an initiative from the ballot on just such a scope challenge.
Of course I’m talking about I-831, my private joke cum baptism in hardball politics, a constitutionally protected initiative seeking to proclaim Tim Eyman a horse’s ass, that was summarily barred from the ballot by a stick-up-his-ass Assistant AG and an angry judge.
The Times and others cheered the judge’s actions, but it was absolutely clear to me at the time the precedent he was setting. Indeed, the brief my attorney presented before the injunction hearing seems downright prescient in light of today’s news:
Many initiatives are presented to the people that are arguably unconstitutional or beyond the scope of the legislative power. For example, Tim Eyman’s Sound Transit Initiative would prevent Sound Transit from spending money on a “Link Light Rail” system. This proposed initiative is clearly beyond the scope of legislative power under Ruano v. Spellman and other cases holding that initiatives cannot seek to prohibit administrative actions. The Attorney General has done nothing to prevent Mr. Eyman from going forward with his initiative. Proposed Initiative 824 is a statement. The Attorney General has taken the position in the present case that statements are not legislative, yet nothing has been done to prevent Initiative 824 from going forward.
Allowing the Attorney General discretion to select initiatives for challenge based on their palatability would violate the First Amendment. If pre-ballot review is to be applied to some initiatives, it should be applied to all initiatives that are arguably unconstitutional or beyond the scope of legislative power.
We concluded our brief by demanding that if the court engages in pre-ballot review, a “writ of mandamus” should issue requiring the Attorney General to seek pre-ballot review of all initiatives that are “arguably unconstitutional or outside the scope of the initiative power.”
Eyman, the self-proclaimed champion of direct democracy, had every opportunity then to take a principled stand in defense of the initiative process, but he refused. So forgive me if four years later I shed no tears for the legal predicament in which he finds himself. That his own unconstitutional initiative should face a pre-ballot scope challenge is the logical, legal consequence of the court order that ended I-831. My only surprise is that it has taken this long for an enterprising attorney to build on the precedent.
“I-960 is not a valid initiative and it will never become the law, so we shouldn’t be wasting tax moneys counting signatures and placing it on the ballot. I-960 seeks to amend the constitution by initiative, which the Courts have repeatedly said you cannot do,” noted Knoll Lowney, lead attorney on the case.
Specifically, I-960 seeks to modify the referendum powers defined in the State Constitution by creating a mandatory non-binding referendum process for all tax and fee increases not already subject to constitutional referendum, and, it attempts to modify the constitutional process for enacting legislation, by requiring a two thirds majority for raising taxes. I-960 is arguably unconstitutional, and, since it intends to amend laws that cannot be amended, it is also arguably not “legislative,” and thus outside the scope of the initiative process.
Unlike the Times, I’m not going to urge the court to rule one way or the other. I’m not a judge. And much to my mother’s chagrin, I’m not an attorney.
But I’ve read the complaint and I’m familiar enough with the case law from my own legal adventures to understand that this is not a frivolous complaint, and that it should be taken very seriously by the courts. Pre-ballot scope challenges are permissible, and indeed, I would argue, are long overdue. In fact, even while defending my own initiative, I argued for “a statutory mechanism for reviewing the constitutional sufficiency of initiatives prior to the ballot.” All I wanted from the AG and the courts was that such pre-ballot review be conducted with fairness and consistency.
Still, consistency is not something we’ve seen from my friends in the media in terms of how they have routinely approached Eyman and his initiatives, and I don’t expect to see consistency now. I fully expect Eyman to cry outrage, and I fully expect the editorialists — eager to prove that they are not aligned against him — to join him in his hypocritical sanctimony.
So come on Seattle Times… I dare you to prove me wrong. Four years ago you editorialized against a joke initiative, urging the court to bar I-831 from the ballot simply because it offended your delicate sensibilities. Do you have the balls to stand by your defense of pre-ballot scope challenges as a legitimate legal exercise?
I don’t think so.
Andrew has more at NW Progressive.