Creating the opportunity for a potentially precedent setting decision, the Washington State Supreme Court has agreed to hear an appeal of a lawsuit challenging the constitutional “scope” of Tim Eyman’s Initiative 960. Oral arguments are scheduled for September 6 at 1:30PM, and a decision would presumably come before ballots go to press for the November election.
Futurewise and SEIU 775 had filed suit in King County Superior Court arguing that I-960 should be blocked from the ballot because it is outside the constitutional scope of the initiative process, and Eyman publicly gloated when the judge refused to act on their request. Hmm. I wonder if Tim’s gloating now?
Courts are reluctant to hear challenges to initiatives prior to the ballot, but the fact that the Supremes have agreed to hear the appeal — and on such an expedited basis — indicates that a number of justices believe the case raises points of law that at least merit consideration. Such scope challenges are not without precedent, the most recent being 2003’s Goldstein v. Gregoire, in which a Thurston County Superior Court judge selectively (and unconstitutionally) barred me from submitting petitions for I-831, my initiative to officially proclaim Tim Eyman a horse’s ass. At the time, my attorney cogently argued:
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.
I still feel that I-831, written in the form of a valid resolution, was barred improperly. But if Goldstein v. Gregoire is ultimately cited in a ruling that blocks I-960 from the ballot, those will have been lumps well worth taking.