Washington I&R Lawsuit

Washington I&R Lawsuit

Challenge to the Role of the Legislature in the Initiative Process

A lawsuit was filed in Washington's Thurston County Superior Court on Monday, December 10, 2001. The suit alleges that the legislature's Office of the Code Reviser overstepped its authority in assisting with the drafting of a recent initiative petition.

The initiative at issue is I-747, approved by Washington voters in the November 2001 election. I-747 caps property tax increases at 1% per year, unless voters approve a higher increase. Its sponsor was Tim Eyman, an anti-tax activist who has been the sponsor of several initiative efforts in Washington.

Washington law specifies that the Code Reviser's office can recommend changes to any proposed initiative. That isn't uncommon among the 24 initiative states - although it isn't always the Code Reviser's Office, many initiative states permit a legislative or other state agency to assist initiative proponents in drafting their measure. In all states, the recommendations made by a legislative agency are always voluntary, and initiative proponents can accept them or ignore them. In fact, permitting a state or legislative agency to help proponents draft an initiative is an often-suggested reform to the initiative process these days. Measures sometimes contain errors, language that fails to conform to the state statutes, or even unintended consequences. The thought behind reforms that permit initiative sponsors to seek help from drafting professionals is that such assistance can help prevent the problem of poorly-drafted measures landing on the ballot. Once they make it to the ballot, they can't be changed.

In the case of I-747, the plaintiffs, a citizen group called Permanently Offended that often opposes Eyman's anti-tax efforts, alleges that the Code Reviser's office went too far. Instead of recommending just technical and stylistic changes, they say the Code Reviser effectively rewrote the initiative. It asks the court to say that the Office of the Code Reviser "lacks the authority to provide political, strategic or legal advice to initiative proponents, and enjoin that office from doing so in the future." Both the Code Reviser's office and Eyman deny the charge that the Code Reviser rewrote the initiative. Eyman says he and his supporters submitted their initiative, then decided to make changes. The Code Reviser's office didn't help Eyman until after he and his supporters had rewritten the measure themselves.

A second part of the suit claims that the Office of the Code Reviser violated public information laws. The office refused to provide its files on I-747, which include notes, drafts, and correspondence, to Permanently Offended on the grounds that the confidentiality of the files were protected under attorney-client privileges.

For more information please contact Jennie Bowser elections-info@ncsl.org in NCSL's Denver office.