State lawmakers' unconstitutional maneuvering with Initiative 940 may have been well intended. But by attempting to amend Washington's law on police use of deadly force in this way, they ended up creating even more confusion for voters.
The people who make the laws must also follow them.
The state Supreme Court once again affirmed that principle this week, this time by striking down the Legislature’s attempt to meddle in Washington’s citizen initiative process.
In a split ruling, the court’s nine justices disagreed on what should happen next with Initiative 940, a proposal to make it easier to prosecute police who kill in the line of duty.
Yet the justices were united in concluding one thing: That the Legislature broke the law by attempting to amend the initiative without ever sending the proposed changes to voters.
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Under current state law, it is nearly impossible to charge police who use deadly force. That must change.
But state lawmakers should have known better than to pull this clearly unconstitutional maneuver. Their attempt to evade the law — though intended to avoid a costly ballot fight — has ended up creating even more confusion for voters heading into the November election.
The state constitution gives lawmakers only three options for handling an initiative submitted to the Legislature: They can either pass the initiative into law as written; they can ignore or reject it, forwarding the original proposal to the ballot; or they can propose an alternative measure, which would then go on the ballot alongside the original.
With I-940, however, Washington lawmakers instead opted for a fourth path: They passed the initiative, but also passed a separate bill amending it — a move they claimed avoided either proposal having to go to the ballot.
Wrong, the high court ruled — and for good reason. If the court had let this action stand, lawmakers in the future could change initiatives submitted to the Legislature however they wanted, without ever having to seek citizens’ approval. That would have set a terrible precedent.
In the case of I-940, the initiative’s sponsors approved of the Legislature’s changes. But nothing guarantees that would always be the case going forward.
“If the legislature could amend initiatives immediately upon enactment, this carefully drawn balance of legislative power between the legislature and the people would be destroyed,” Justice Sheryl Gordon McCloud wrote in the court’s lead opinion.
These procedural questions are separate from the debate about whether Washington’s law shielding police who use deadly force needs to change. Without question, it must.
Right now, an officer can’t be convicted of a crime for using deadly force if he or she acted in good faith and without malice, or what the law calls “evil intent.”
That is far too high a bar — one that prosecutors say prevents them from pressing charges even in clear cases of police abuse of power.
The high court is being asked to reconsider its decision, which puts I-940 on the ballot but rejects the compromise measure. Unless the court reverses part of its Tuesday ruling, voters will get a chance to vote only on the original initiative in November.
This is not the outcome anyone wanted — not even I-940’s original sponsors, De-Escalate Washington, who came together with police groups earlier this year to support the amended version.
If the Legislature wanted to propose a different version of I-940, it should have done so the right way. That would have meant sending the proposed alternative to the ballot, instead of trying to avoid the inconvenient requirement for a public vote.