Legislative proposal overhauls initiative review process to assure constitutionality

By Tim Gruver/WNPA Olympia News Bureau

A lot of time and money goes into writing initiatives you vote on each November, all of which goes to waste if those proposals are struck down as unconstitutional by our state Supreme Court.

SB 5386 would ease the process by which state lawyers can challenge the constitutionality of an initiative before it reaches the ballot.

The bill’s sponsor, Sen. Jamie Pedersen, D-Seattle, believes that it would better ensure constitutionally sound initiatives to survive court review.

“Cynics might say there are some people who might bring initiatives to us who purposely draft them in a way that is unconstitutional,” Pedersen said. “But it is absolutely the case that over the last few years, or over probably the last 20 years, we’ve seen initiatives that were very popular at the ballot box, but were struck down by courts or had to be reconsidered in the legislative process.”

Pedersen’s bill requires initiatives to undergo a mandatory 45-day review by the state code reviser and attorney general before review by the secretary of state, to qualify for the ballot. Additionally, a 28-day public notice and comment period would apply to all initiative measures.

Currently the secretary of state and code reviser review an initiative within seven business days of filing before it is examined by the state attorney general, who has five business days to complete his review.

The bill also raises the filing fee for initiative measures from $5 to $500. The increase is aimed at paying for more state attorneys to oversee and quicken the initiative review process.

“We can all think of examples of things that wouldn’t have happened in the initiative process if it had been through this proposed review requirement and with the opportunity for public comment,” Pedersen said. “I think as inclusive as initiative sponsors try to be, it’s the nature of that process … you’re not going to get as many points of view unless you have an opportunity for a 28-day notice and public comment period.”

Sen. Mark Miloscia, R-Federal Way, expressed concerns that the 45-day review would increase partisan attempts to stall initiatives before they are subject to adequate debate.

“Someone can go to Thurston (County) court and say, ‘Look what Senator Miloscia’s doing.’ Before I work the process, you get an injunction to stop it,” Miloscia said. “Doesn’t that pre-motion shut down, or could be used to shut down initiatives?”

Rory O’Sullivan, an attorney with the King County Bar Association, believes that the 45-day review would better develop initiatives and promote discussion over the course of the review.

“We see the 45-day process as not just where you submit an initiative, and 45 days later, you get an answer,” O’Sullivan said. Sponsors have a chance to submit an initiative and code revisers give feedback, back and forth, during the vetting process, he noted.

The bill awaits further consideration in the Senate State Government Committee

(This story is part of a series of news reports from the Washington State Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation. Contact reporter Tim Gruver at timgruver92@gmail.com).