Courts as Watchdogs of the Washington State Initiative Process

• Publication year: 2001

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 4SPRING 2001

Courts as Watchdogs of the Washington State Initiative Process

Kenneth P. Miller(fn*)

I. Introduction

In November 1999, Washington state voters enacted Initiative Number 695 (I-695), the high-profile ballot measure designed to reduce vehicle license fees and to require voter approval for future tax and fee increases.(fn1) Shortly thereafter, Washington Superior Court Judge Robert Alsdorf invalidated the initiative.(fn2) Tim Eyman, I-695's sponsor, was enraged. "[O]ne guy with a robe on, but he might as well be wearing a crown if he's going to act like a king."(fn3) In fact, Judge Alsdorf wielded a powerful scepter and committed a sweeping counter-majoritarian act. One solitary judge, and after him, eight justices of the Washington Supreme Court,(fn4) overturned the will of nearly a million Washington voters.(fn5)

The next year, Washington voters approved I-722,,(fn6) another Eyman-sponsored tax-cutting initiative known as "Son of I-695."(fn7) In a ruling from the bench, Thurston County Superior Court Judge Christine Pomeroy promptly struck down that initiative.(fn8)

These rulings followed closely on the heels of the state supreme court's decision to invalidate I-573, Washington's 1992 term limit initiative.(fn9) The two dissenters in that case, Justices Richard B. Sanders and Gerry L. Alexander, made the point directly: "Today, 6 votes on this court are the undoing of the 1,119,985 votes that Washingtonians cast at the polls in favor of term limits."(fn10)

Invalidation of a citizen initiative is indeed different from our usual understanding of judicial review, wherein a court overturns the judgment of a coordinate branch of representative government.(fn11) Here, Washington courts nullified the decisions of the people themselves. While this outcome is remarkable, it is not particularly rare. Initiatives adopted by Washington voters, like initiatives in other states, are frequently challenged in court and are often invalidated, either in part or in their entirety.(fn12)

This Article describes the high rate at which courts have invalidated Washington initiatives and then explores why this is so. The Article suggests that it is initiative lawmaking's Populist orientation- with respect to both its unfiltered majoritarian processes and its often-constitutionally suspect substance-that makes initiatives vulnerable to legal attack.

For their part, judges, who wield the sole institutional check on the initiative process, have to decide how strongly they are going to exercise that check. They can be what I call "juris-populists" and accommodate initiative lawmaking, or they can play the role of "initiative watchdogs" and look for ways to strike down initiatives arid constrain the process. As initiative lawmaking has gathered force in recent years, legal scholars have debated whether courts should apply a different level of scrutiny to initiatives than to ordinary legislation, some arguing that initiatives should be scrutinized more aggressively.(fn13)

Very recently, courts in several states seem to have shifted discernibly from granting deference to initiatives toward applying tougher scrutiny. Specifically, several courts are more strictly applying technical state constitutional restrictions on initiative lawmaking, such as single subject rules and ballot title requirements, invalidating numerous initiatives on these grounds.(fn14) The Article suggests that the Washington state courts' invalidation of I-695 is consistent with this trend.

If the courts are going to play "watchdog" over the initiative process, however, they do so at some risk. Many voters are frustrated when courts overturn popular initiatives and are inclined to agree with Mr. Eyman's anticourt sentiments.(fn15) Especially where, as in Washington, judges are selected in competitive elections, the same Populist impulse that drives initiative lawmaking can further politicize the judiciary and threaten its independence.

II. Judicial Review of Washington Initiatives

To understand the nature and magnitude of the courts' role in Washington's initiative process, it is helpful to look at some numbers. First, Washington is a high-use initiative state.(fn16) Since the state instituted the initiative process in 1912,(fn17) Washingtonians have adopted sixty-four statewide initiatives.(fn18) Voters in only four states have adopted more. Oregon and California have used the initiative process most actively;(fn19) the second tier of initiative states includes Colorado, North Dakota, Washington and Arizona.(fn20) By contrast, voters in Utah, a "low-use" initiative state, have adopted only five initiatives in their state's history.(fn21) Unlike other high-use initiative states, Washington has not seen a major surge in initiative lawmaking over the past few decades. In Oregon, for example, voter-approved initiatives jumped from zero in the 1960s to twenty-two in the 1990s, and in California they surged from only three in the 1960s to twenty-four in the 1990s.(fn22) By contrast, Washington voters have adopted initiatives at a near-constant rate over the past four decades: nine in the 1960s, nine in the 1970s, seven in the 1980s, and eleven in the 1990s.(fn23)

Second, as in other high-use initiative states, Washington's voter-approved initiatives have frequently faced court challenges. As of 1999, fifteen of the thirty-six initiatives Washingtonians approved between 1960 and 1999 (42%) had been challenged in state or federal court-sometimes in both.(fn24) This challenge rate is similar to Oregon's (44%, nineteen of forty-three)(fn25) and Colorado's (48%, fourteen of twenty-nine)(fn26) during the same period. California, the busiest initiative state over the past four decades, also had by far the highest rate of initiative challenges (65%, thirty-six of fifty-five).(fn27) In all of these high-use initiative states, including Washington, the sheer number of challenges and the crucial policy significance of many of the cases have now fully established courts as an important component of the initiative process.

Third, the outcomes of cases suggest that courts have played an important countering and filtering role in Washington's initiative process. Courts struck down, either in part or in their entirety, 53%) (eight of fifteen) of Washington initiatives challenged in court over the past four decades.(fn28) The nullified initiatives included major proposals to impose a mandatory death penalty for first-degree murder;(fn29) restrict pornography;(fn30) prohibit forced busing for racial integration of schools;(fn31) ban storage of out-of-state radioactive waste;(fn32) impose term limits on state elected officials and members of Congress;(fn33) and reduce vehicle license fees and require voter approval for future tax and fee increases.(fn34)

III. Why Do So Many Initiatives Have Trouble in Court?

We now turn to the question of why? Why are so many voter-approved initiatives challenged in court, and why are so many invalidated? I contend that the primary explanation for the courts' high level of involvement in initiative lawmaking in Washington (and elsewhere) lies in the nature of the initiative process itself. Specifically, the Populist conception of initiative lawmaking, which manifests itself both in the process of enacting initiatives and in the substance of laws enacted thereby, makes ballot measures vulnerable to legal challenge and invalidation.

I should explain what I mean by the "Populist conception" of initiative lawmaking, distinguishing it from the competing "Progressive conception."(fn35) The initiative process is often characterized as a Progressive reform because it was introduced in Washington and most other initiative states during the "Progressive era" (approximately 1900-1918).(fn36) However, Populists were agitating for adoption of direct democracy during the last decades of the 19th century, before the advent of the Progressive era.(fn37) More importantly for this discussion, Populists and Progressives had different conceptions of the initiative process.

Progressives respected the representative system and envisioned the initiative (as well as the referendum and recall) as a way to improve representative government. For example, Woodrow Wilson, who came to support the initiative process, maintained that Progressive advocates of initiative lawmaking had no intention of undermining representative or legislative processes, but rather wanted to redeem them.(fn38) By contrast, Populists made no secret of the fact that they distrusted representative government and saw the initiative as a way to bypass, constrain, and undermine it.(fn39)

Populists and Progressives from that earlier period have successors today, and the two conceptions of initiative lawmaking continue to compete. In short, neo-Progressives still seek to use the initiative to enhance the responsiveness, professionalism, and expertise of government, whereas neo-Populists seek to substitute the wisdom of the people for the deliberations of elected officials.

The Populist position today supports both the increased use of direct democracy and little or no reform of the initiative process. Term limit advocates (such as Sherry Bockwinkel)(fn40) and tax cutters (such as Tim Eyman and his counterparts Bill Sizemore in Oregon(fn41) and Doug Bruce in...