Washington High Court May Reconsider Ruling on Police Deadly Force Measure

The question of whether Washington voters will have their say on a measure designed to make it easier to prosecute police for negligent shootings might not be over, after all.

The day after ruling that Initiative 940 should appear on the November ballot, the state Supreme Court requested briefing by the end of the day Wednesday about how the justices’ various opinions should be interpreted.

Supporters of the initiative said only a single justice, Barbara Madsen, voted that I-940 should go to voters while a compromise measure preferred by lawmakers, advocates and police groups should not. Supporters of I-940 said her opinion should not control the result of what amounted to a 4-4-1 decision, and late Tuesday they filed an emergency motion asking the court to reconsider.

“For reasons not explained, the Court seems to have adopted the view of that single Justice as the ruling of the Court as a whole,” attorneys for De-Escalate Washington, the initiative’s sponsor, wrote. “Adopting a substantive result that only one of nine Justices reaches is contrary to any notion of how a plurality decision should be interpreted.”

The court Wednesday requested that frequent initiative sponsor Tim Eyman and Republican Sen. Mike Padden, who sued over the issue, respond to the motion by the end of the day.

De-Escalate Washington submitted I-940 to the Legislature early this year after collecting nearly 360,000 signatures. The measure is designed to improve police training in de-escalation tactics and to eliminate a requirement that prosecutors prove officers acted with malice to get a conviction in negligent shootings.

Law enforcement groups objected to some of the initiative’s provisions, however, and both sides came together with lawmakers to craft a compromise. The Legislature then passed the original as well as a bill to amend and replace it with the compromise language.

That was unprecedented. Under the state Constitution, lawmakers can approve such initiatives as written; reject or ignore them, in which case they appear on the November ballot; or propose an alternative to appear alongside the original on the ballot.

The Legislature’s maneuver amounted to a fourth option not considered by the Constitution.

None of the justices said the compromise could stand as law, as the Legislature intended. The debate among them was whether the original measure would take effect; whether it alone would go to the voters; or whether it and the compromise would go to the voters.

Four of the justices – Sheryl Gordon McCloud, Charles Wiggins, Steven Gonzalez and Mary Yu – said the compromise amendment was invalid, but the original initiative should take effect without a public vote, because the Legislature passed it.

Four other justices – Mary Fairhurst, Debra Stephens, Charles Johnson and Susan Owens – said both measures should be placed on the ballot, because the compromise amounted to an alternative proposed by the Legislature.

And then there was Madsen, who said she would have sent both measures to the ballot, except that the compromise measure contained a provision rendering it invalid if the original measure was subject to referendum. Thus, she decided, only the original initiative should go to a public vote.

De-Escalate Washington’s motion urged the court to let I-940 take effect, saying McCloud’s reasoning in her lead opinion was most persuasive. Alternatively, it said, the court could place both on the ballot.

But, the group said, it seemed wrong to put only I-940 on the ballot when eight of the nine justices disagreed with that result.

Eyman suggested the initiative’s supporters are hoping to avoid running an expensive statewide campaign for it, so that they can direct their money to other progressive issues and candidates.

“They just want to pocket their victory and move on,” he said.