Just a Little Case About the Foundations of Judicial Power

The hottest new Washington Supreme Court decision is Eyman v. WymanIt has everything.

A split judgment with no clear majority decision. A debate about the proper role of the courts when dealing with unconstitutional statutes. And Washington’s indirect initiative procedure.

What’s Washington’s indirect initiative procedure?

It’s that thing, where a group of citizens can collect signatures, and then propose a statute . . . .

Okay, that’s enough of that gimmick. The case, however, is truly fascinating, and I think it’s worth a deep dive. I’m not going to focus too much on the substance of the dispute, which involves the rules regarding the initiative process. But the other two things–the lack of a majority decision and the remedial question of how to deal with an unconstitutional statute–are tied up with those rules. So there’s a bit of background work to do before we get to the good stuff. Stay with me.

Washington Initiatives

To understand the general issues of judicial power, you need to know a bit about how initiatives work in Washington. (I’m going to leave out some details. My description comes largely from the various opinions in the case.) Washington voters have the constitutional right to initiate legislation. We can do that in two ways: direct “initiatives to the people” or the more indirect “initiatives to the legislature.” Both methods involving collecting a bunch of signatures from people who want your initiative to become a law. The initiative in Eyman was an initiative to the legislature, which means after the initiative gets the requisite signatures, it proceeds to the legislature for additional process. (That’s different from an initiative to the people, which goes directly to the ballot.)

Once the legislature receives an initiative, it has a few choices: (1) It can just enact the initiative “without change or amendment,” in which case the initiative becomes a law. (2) It can reject the initiative, in which case the initiative goes on the ballot for direct consideration by Washington voters. (3) It can do nothing, which is equal to a rejection. Or (4) it can propose a different measure, in which case both the original initiative and the legislature’s alternative proposal appear on the ballot for the voters to choose one option or reject them both.

The point of these limited choices is to ensure that a voter-backed initiative gets full and fair consideration as it was drafted by the initiative’s backers. If the legislature likes an initiative, it can enact it. If the legislature rejects an initiative, then it goes to the ballot. If the legislature prefers something different, then the voters get to decide between the two options—the original initiative and the legislature’s version.

But what the legislature can’t do is enact the initiative, thus cutting the voters out of the process, and then immediately amend the statutory language through the usual means, thus denying the voters the chance to consider competing options. (There’s basically a two-year bar on amendments after the initiative gets approved.)

Initiative 940 and the Legislature’s Too-Clever-By-Half Time-Travelling Amendment

Okay, that’s enough background. Let’s get to the actual process in this case: Initiative 940 was a proposal to enact a new law regarding police officers’ use of deadly force in Washington. The initiative received well over the required number of signatures and, since it was an indirect initiative, the Secretary of State sent I-940 along to the legislature for additional process.

And here is where things start to get interesting. Apparently, the legislature wasn’t really happy with any of the four options set out above. So it tried something perhaps a tad too clever. Before the legislature voted on I-940, a separate bill was introduced: Bill 3003. This was no ordinary legislation. Bill 3003 purported to make changes to the statutory provisions that would result from the legislature’s hypothetical future enactment of I-940, if the legislature later enacted I-940 into law. In other words, Bill 3003 offered amendments to a statute that was not yet a statute. Language in the bill made clear that if the legislature didn’t enact I-940, then the bill should do nothing at all. According to the text of the bill, “if a referendum on the initiative is certified . . . , this act [Bill 3003] is void in its entirety.” (Recall that a referendum on the initiative occurs if the legislature rejects the initiative or proposes an alternative. Only enactment avoids a referendum.)

Bill 3003 was passed by the house and senate before being signed by the governor on March 8, 2018. That same day, after Bill 3003 became law, the legislature enacted I-940, which then triggered the amendments from the earlier-enacted bill.

You can see how this all seems like a bit of an end-run around the constitutional initiative system. The legislature wanted a statute that differed from the initiative text, but they didn’t want to present the two options to the voters, and they knew they couldn’t amend the initiative after they enacted it, so they created this time-turner of a bill that traveled forward in time to amend the initiative.

Side note: Yes, I know I am glossing over things and oversimplifying things and maybe even getting some details wrong. I don’t think the legislature’s actions here were nefarious. As far as I can tell, the amendments were somewhat of a housekeeping thing, just to clean up some potential problems with the initiative text. And everyone seemed to think the cleaned up version was an improvement. But this isn’t a post about the policy merits of what the legislature did or the substance of I-940. So I’m not getting into that debate.

The Court Challenge to the Legislative Process

Anyway, of course there was a court challenge to this creative sequencing of events. Washington’s Initiative King, Tim Eyman, wasn’t a fan of the legislature’s end run around the initiative process. So he filed suit in state court, claiming taxpayer standing, and seeking the following relief:

  • A declaratory judgment that the legislature’s attempt to amend I-940 was void.
  • An order enjoining the state from putting any initiative language on the ballot other than a ballot that allowed the voters to consider both the original I-940 and the amended version proposed by the legislature.
  • An order requiring the Secretary of State to include on the 2018 ballot both the original I-940 and the amended version proposed by the legislature.

In other words, Mr. Eyman thought the Bill 3003 gambit was a sham. And as a remedy, he wanted to treat the post-3003 “amended” version of I-940 as the legislature’s proposed alternative, with the voters getting to consider both options. Seems reasonable!

The Thurston County Superior Court sort of agreed. The trial court agreed that Bill 3003 was not properly enacted. But the court wasn’t sure what to make of the legislature’s subsequent enactment of I-940. The court explained: “What we know is when the legislature voted on I-940, every legislator knew that the substantive amendments [in] [Bill] 3003 had already been approved by both houses and signed by the governor. Votes held in reverse could have resulted in something different.” “If there had been no [Bill] 3003, would there have been enough votes in one or both houses to pass I-940 as written?” In light of this uncertainty, the trial court needed to fashion a remedy.

The court ordered that I-940 alone appear on the ballot, as if the legislature had rejected or ignored the initiative. Since the court couldn’t be certain that a hypothetical alternative legislature would have approved or rejected the initiative in the absence of Bill 3003, the court decided to proceed as if the legislature had not enacted I-940. So the voters would get to consider the initiative on the ballot.

That’s what the Washington Supreme Court was faced with on appeal. (We can do a direct appeal from the trial court to the Supreme Court here in Washington.) It had a big old mess on its hands.

The Washington Supreme Court: ¯\_(ツ)_/¯

And here is where things really get interesting! The Supreme Court couldn’t agree on what to do with this mess.

Four Justices concluded that I-940 was enacted. That’s because it was enacted. Recall that the legislature voted to approve I-940. But what about Bill 3003? The four Justices concluded that Bill 3003 was unconstitutional. So it’s a nullity, void, nothing, zilch, &c. Faced with an enacted initiative and a nullity, the four Justices concluded that I-940 was now the law, without any further voting or approval. The legislature enacted the initiative. That’s the end of the story.

Four other Justices saw things differently. Looking at I-940 and Bill 3003 together, these Justices concluded that I-940 had not been enacted “without change or amendment,” since the legislature had passed a proposed amendment to the initiative. Taking a more functional view, the Justices interpreted the legislature’s actions as a proposal for an alternative measure. Therefore, both measures should appear on the ballot for the voters’ consideration: I-940 and the amended proposal that would have resulted from Bill 3003.

Justice Madsen didn’t agree with either group of four. She concluded that I-940 was not enacted “without change or amendment,” so it should appear on the ballot. But regarding Bill 3003, Justice Madsen took the legislature at its word. Since Bill 3003 “by its express terms, voids itself if I-940 is placed on the ballot,” she was not about to resurrect void legislation. Placing both proposals on the ballot would violate the specific language of Bill 3003. Therefore, only I-940 should appear on the ballot.

The most important skill for a supreme court practitioner is the ability to count to five. Here, no outcome received five votes. So what to do?

Well, the Court seemed to break the matter into different issues. “A majority of this court agrees that [Bill 3003] is void and unenforceable and, hence, that we cannot compel the secretary of state to place it on the ballot.” So on the question of Bill 3003, the Court counted five votes for “keep it off the ballot,” either because nothing should go on the ballot (four votes) or because only I-940 should go on the ballot (one vote). As for I-940, the Court counted five votes to order that it be placed on the ballot, either because both options should be placed on the ballot (four votes) or because only I-940 should be placed on the ballot (one vote).

Here’s how the lead opinion closes: “As a result, a majority of this court affirms the superior court’s decision to issue a writ of mandamus compelling the secretary of state to place I-940 on the ballot.”

What Happens When a Court Lacks a Majority Judgment?

It’s important to recognize that the Court’s disagreement here was not just a disagreement about reasoning or holding or the relevant law. Rather, the Justices disagreed on the judgment—that is, the actual judicial order to the lower court in this specific case.

This kind of disagreement should not be confused with the more familiar disagreements we see about reasoning. For example, imagine that a nine-member court is evaluating an affirmative action program at a public university. Three judges conclude that the program is unconstitutional because the state can never consider race in decisionmaking. Three judges conclude that the program is constitutional because the state can consider race in an ameliorative manner to remedy past societal discrimination. And three judges reject both absolute positions. They don’t think race can never be considered, but neither do they think that race can be considered for any purportedly benevolent purpose. Instead, these three judges would approve of the program because racial diversity in higher education is an important governmental interest.

This is the familiar Marks situation. But note that while the court has a 3-3-3 split on its reasoning, it has a clear 6-3 majority on the judgment. The university’s program is constitutional. Six judges agree on that. So regardless of the individual judges’ reasoning, the university knows with certainty that it can continue with its program. These kinds of splits in reasoning make things difficult for future courts and parties, who are trying to determine the precedential force of the 3-3-3 split. That’s the problem the Marks rule is attempting to solve. But there’s no problem for the specific parties in the case that was actually decided.

But that’s not the case if the court lacks a majority judgment. An appellate court has a variety of options to dispose of a case.

  1. It can affirm the court below. For example, the trial court entered summary judgment in favor of the plaintiff, and the appellate court agreed that the plaintiff was entitled to summary judgment.
  2. Alternatively, the appellate court can reverse the court below. For example, the trial court entered summary judgment in favor of plaintiff, but the appellate court concluded that the defendant should have won as a matter of law, so the court reverses and instructs the trial court to enter judgment in favor of the defendant.
  3. Alternatively again, the appellate court can remand to the court below. For example, the trial court entered summary judgment in favor of the plaintiff, but the appellate court thinks issues of fact remain, so the court remands for further proceedings in the trial court.

And there’s more. For example, the appellate court can remand with or without vacating the trial court’s order. Judge Newman’s article on decretal language (titled, helpfully, Decretal Language) is absolutely excellent on all this stuff. You should definitely check it out. It was assigned reading in Chief Judge Jacobs’s chambers when I clerked.

So what happens if an appellate court has no majority for a particular judgment? What happens if the court splits 3-3-3 with three judges wanting to affirm, three judges wanting to reverse, and three judges wanting to remand for further proceedings?

The answer appears to be: ?????

This question has come up in the United States Supreme Court. And the answer is somewhat unsatisfying. The common practice, apparently not required by any source of law, is for a Justice to change their vote to avoid the problem. Seriously.

Here’s a description of the phenomenon, from the Introduction of Ron Davidson’s article, The Mechanics of Judicial Vote Switching:

In 2003, Green Tree Financial Corp. v. Bazzle splintered the United States Supreme Court. Justice Breyer, joined by Justices Scalia, Souter, and Ginsburg, voted to remand the case. Chief Justice Rehnquist, joined by Justices O’Connor and Kennedy, voted to reverse the South Carolina Supreme Court decision. Justice Thomas voted to uphold the decision below.

The remaining decision-maker, Justice Stevens, found himself in a situation unusual for Supreme Court Justices. Excluding his vote, there were four votes to remand, three votes to reverse, and one vote to uphold. Justice Stevens stated that he preferred to “simply affirm the judgment of the Supreme Court of South Carolina. Were I to adhere to my preferred disposition of the cases, however, there would be no controlling judgment of the Court.” That is, if Justice Stevens had voted to affirm, the Court would have been deadlocked 3-4-2 in favor of overturning, remanding, and upholding, respectively.

In Screws v. United States, a 1945 case, four Justices voted to remand the case, three Justices voted to reverse, and one Justice voted to affirm, leaving Justice Rutledge, who preferred to affirm the lower court’s decision. Fearing a 3-4-2 deadlock, Justice Rutledge switched his vote to remand “in order that disposition may be made of this case.” Following this precedent, Justice Stevens agreed to remand the case in Green Tree despite his stated preference to uphold. Every time there has been no majority on the disposition of a case . . . at least one Justice switched his or her vote to achieve a majority disposition.


Obviously, none of the Justices in the Washington Supreme Court switched their vote in Eyman v. Wyman. The Court therefore lacked a majority disposition. Why, then, did that deadlock result in an affirmance?

The Court appeared to think that the affirmance resulted from the ability to split the case into an I-940 question and a Bill 3003 question. Since five votes existed on those separate questions, the Court could cobble together a majority disposition that way.

I’m not sure that’s right. Yes, the various issues are both linguistically and logically separable. But I doubt that the force of a judgment should depend on that sort of separability. In this case, one Justice would have affirmed the trial court’s order. The other eight Justices wanted to remand with instructions. They split 4-4 on the substance of those instructions. It’s only luck, however, that the differing instructions had some sort of logical severability between what to do with I-940 and Bill 3003. One can imagine a more Solomon-like situation, where the remand instructions are not so easily split in half.

For instance, imagine a situation where two parties have a boundary dispute. The plaintiff says the boundary is X. The defendant says the boundary is Y. And the trial court, after hearing evidence, determines that the boundary is somewhere different altogether, along line Z. On appeal, three judges say that X is correct, three say Y is correct, and three say Z is correct. There is no “average” boundary in that case. The trial court is not going to see that judgment and think, “Okay, so I’ll just plot out some sort of average line of best fit between the three options, so the plaintiff gets 2/3 of that tree, but only 1/3 of that driveway along the river, and 1/2 of the lot north of the pond,” &c. Not everything is easily severable!

The above example isn’t severable at all, not even linguistically. But imagine a different situation involving claims and damages awards. A jury finds for the plaintiff on claim 1 and claim 2, awarding the plaintiff $5000 for each claim. But the trial judge disregards the jury verdict and enters a judgment for the defendant. The plaintiff appeals (obviously!). On appeal, three Justices would affirm the trial court in full. Three Justices would affirm the dismissal on claim 1 but reverse on claim 2, meaning that the case would be remanded with instructions to enter judgment of $5000 for the plaintiff. And three Justices would reverse the dismissal on claim 1 but affirm on claim 2, meaning that the case would be remanded with instructions to enter judgment of $5000 for the plaintiff.

In this example, you have six Justices–a clear majority–ordering a remand to award $5000. But you have six Justices agreeing that the trial court was right to enter judgment for the defendant on both claims. It’s just that the claims are split among different Justices. So though the judgments are linguistically severable, they are not necessarily logically severable. It might not make sense to consider separately the damages award from the underlying claims. I don’t think the answer (and certainly not the obvious answer) is that the plaintiff gets $5000 on remand.

With Eyman, the Supreme Court got lucky. The I-940 issue was linguistically severable from the Bill 3003 issue. And it was likely logically separable as well. There’s nothing nonsensical about treating the legislature’s actions as a plain rejection of I-940, thereby placing it on the ballot. That’s an outcome that fits without the general constitutional scheme.

The Supreme Court got lucky in another way as well. The “middle” between the 4-1-4 split also happened to affirm the trial court’s order. There’s no reason that would always be the case. And my gut tells me that the right answer for a split judgment, absent a Screws-inspired vote switch, would be for something along the lines of an affirmance by an equally divided court.

In Eyman, everything pointed in the same direction. The “middle” vote in the 4-1-4 split was the same as the “average” of the judgments, which was the same as the severable 5-4 result, which was the same as an affirmance. So in the end, I’m pretty confident that the Court reached the right result, at least procedurally, given the Justices’ votes. But in the future the Court might have more of a problem on its hands if it can’t get five Justices together to at least agree on a clear judgment.

What Gave the Court So Much Trouble? It’s Impossible to Remedy Unconstitutional Legislative Action.

I think the reason the Court had so much trouble in Eyman is that it was faced with an improper legislative action. Once the Court decided that the legislature did something improper (and all nine Justices agree that something needed to be done to correct the legislature’s actions), the remedial question becomes extremely messy. Justice Gordon McCloud stressed “judicial respect for the legislative branch.” Justice Yu warned that the Court’s decision could “undermine respect for the separation of powers.” Justice Stephens expressed a concern with “what [the legislature] in fact did” and with “recognizing the result of [the legislature’s] actions consistent with” the Constitution. In other words, both sides of the 4-4 split wanted to respect the legislature. They just couldn’t agree on how!

And that’s because it’s really difficult to respect what the legislature did when you’ve already agreed that it did something wrong.

In a slightly different context, my colleague Lisa Manheim has explained this problem as a problem of “constitutionally disrupted statutes.” She addresses this issue in the area of severability, where a court has determined that some part of a statute is unconstitutional, and then needs to figure out what to do with the rest of it. Professor Manheim argues “that courts confronting a constitutional flaw in a statute should respond by minimizing the disruption to that statute. . . . Legislative intent is what properly drives such analysis. By complying with unencumbered legislative intent, rather than the restrictive framework of severability, courts would interfere less drastically with the statutory code and, as such, more successfully respect the legislative will.”

And that’s helpful in most cases! But here, where the legislative intent seems to have been to thwart a constitutional restriction, the Court lacked any clear guiding or restraining principle. In my view, that’s likely what led to the fractured opinions.

Though the Court didn’t use the language of severability, they seemed to be struggling with the issues raised by Professor Manheim. For example, the trial court attempted to figure out what to do with I-940 given the invalidation of Bill 3003. Even though the initiative was a totally separate legislative act from the bill, the trial court recognized that the two actions were in some way linked. The legislators voting to enact I-940 knew that Bill 3003 had already been passed. Can those decisions be severed? Five Justices seemed to think so. And that’s how we wound up with an outcome that only one Justice (and the trial court) supported.

Crazy stuff.

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