Washington State Attorney General Rob McKenna has written a nonsensical legal opinion on ESHB 1222 that will help right wing initiatives this year. ESHB 1222, “to increase the accountability of ballot measure petitions”, was passed last year by the Washington State Legislature to require that petition gatherers sign a declaration on the back of each petition signifying they got the signatures. The reason was to reduce fraud.

McKenna‘s opinion is that the bill does not really require an initiative signature gatherer to sign each petition, even though that is what the bill says. McKenna‘s opinion, unless challenged, will allow this year’s crop of mostly right wing initiatives to avoid the consequences of having any petitions rejected that do not have signed declarations.

McKenna‘s opinion was in response a request for an opinion by Republican Representative Toby Nixon at the time it was revealed that Tim Eyman‘s first printing of I-917 contained a declaration by the petitioner that could be easily overlooked and not signed. At the time we commented that the petitions would need to be carefully checked to ensure that the petitioners actually signed the sheets.

McKenna‘s opinion is a tortured exercise in how to help your friends like Tim Eyman (Initiative 917 to cut transportation funding), Denis Falk and Martin Selig (Initiative 920 to repeal the estate tax that goes to education funding in this state) and the Farm Bureau and Colorado based Americans for Limited Government (Initiative 933 to overturn neighborhood zoning and growth management).

It would not surprise me if McKenna ran his opinion by his in house BIAW lawyer he hired and also the lawyer who wrote the biased ballot title for Initiative 933. They may be the same person. Why do I say that? I can only speculate, but McKenna‘s opinion is that Engrossed House Bill 1222, passed by last year’s Washington State Legislature, really doesn’t mean anything. And I find that hard to believe.

Mc Kenna has gone out of his way, to circumvent the will of the Legislature, to try to prevent this bill from being implemented as written. One has to wonder if Eyman messed up so bad that the only way not to invalidate hundreds of petitions was to try to bypass this law. Or maybe its just that McKenna‘s heart is not in really protecting the initiative process from fraud but is instead in protecting the right wing petition factory industry.

As passed by the Legislature and signed by Governor Gregoire, ESHB 1222 specifically says that

The following declaration must be printed on the reverse side of the petition:
I, . . . . . . . . . . . ., swear or affirm under penalty of law that I circulated this sheet of the foregoing petition, and that, to the best of my knowledge, every person who signed this sheet of the foregoing petition knowingly and without any compensation or promise of compensation willingly signed his or her true name and that the information provided therewith is true and correct. I further acknowledge that under chapter 29A.84 RCW, forgery of signatures on this petition constitutes a class C felony, and that offering any
consideration or gratuity to any person to induce them to sign a petition is a gross misdemeanor, such violations being punishable by fine or imprisonment or both.

That seems pretty straight forward and Secretary of State Sam Reed thought so also. He posted on his website the required language and said it would make the law meaningless to require the provisions of the new law and then accept petitions with unsigned declarations

In his booklet , Filing Initiatives and Referenda in Washington State, he said

“On the reverse side of every petition page, must be the declaration by the signature gatherer as required by RCW 29A.72.110, RCW29A.72.120 or RCW 29A.72.130. This act takes effect January 1, 2006 and requires the following declaration:

I,_______________________, swear or affirm under penalty of law that I circulated this sheet of the foregoing petition, …”

Reed has a line instead of dots so it is much more obvious that there is a place for someone to sign, and also says”declaration by the signature gatherer…” How can there be a declaration if one doesn’t sign?

But believe it or not McKenna somehow spends 12 pages arguing that no signature is required. McKenna says that he looked at the legislative record to reach his conclusion but he did so selectively. He tries by length to argue his position. But in this case length does not denote legal brilliance but rather tortured twisted reasoning. For example he ignores the statements posted on the Washington State Legislature’s bill history page for ESHB 1222 that seem to tell a different story about the intent of the bill.

For example, the bill digest says:

Requires that the following declaration must be printed on the reverse side of the petition:
I, . . . . . . . . . . . ., swear or affirm under penalty of law that I circulated this sheet of the foregoing petition, …”

Was I being confused by what these words meant? I decided to look up what the legal definition of “declaration” was. Here is the definition from law.co:

declaration – “a written statement made “under penalty of perjury” and signed by the declarant, which is the modern substitute for the more cumbersome affidavit, which requires swearing to its truth before a notary public.”

I think it is key that it says a declaration is signed. McKenna says the “2005 amendments do not include a place to sign. Nor do the 2005 amendments contain any language expressly requiring that the declaration be signed …”

Really. It certainly looks and reads like one is expected to sign. That is what a declaration is. And that is how the Secretary of State interpreted it also.What is not clear? Is McKenna mimicking Bush’s signing statements where Bush says he does not intend to comply with selected bills as written by Congress? Is McKenna doing the same with this legislation?

McKenna says that the amendments do not specify “the consequences of failure to fill out and sign the declaration” That I can’t understand at all because failure to sign means the petitions are not as required by the new law. Without a signature by the petitioner, they would not have a declaration. They thus would be rejected. This is how Sam Reed read it and I think his logic is clear.

McKenna argues that because previous bills in prior sessions contained versions of signed and notarized declarations, then the Legislature choosing a non-notarized procedure meant their desire was to have a statement on the petition that was not meant to be signed. Come again?

As the law.com definition noted, notarized statements are cumbersome and an added burden and the written signed declaration was the “modern substitute for the more cumbersome affidavit” according to law.com.

McKenna also argues that since two sponsors of the bill made contradictory statements on the House floor that they canceled each other out. Maybe it just that the prime sponsor understood the legal aspects of the bill and Rep Nixon did not.

Rep McDermott is quoted on the House floor as saying, “…the Senate has amended this bill to require that the person gathering the signatures actually has to sign the back of the petition…”.

Meanwhile Rep Nixon did not seem to be clear on what the bill did and thought that “It also does not invalidate the petitions forms if the signature is not provided by the circulator” So McKenna, seemingly because of erroneous statements by Rep Nixon as to what the bill did, uses those erroneous statements to say no signature is required?

It seems to me that the words speak for themselves.” I, ____________, swear or affirm under penalty of law that I circulated this sheet of the foregoing petition,…” What is not clear about these words?

Ironically, McKenna at the end of his discussion mentions a Colorado law, upheld in the Federal Courts, which threw out petitions because a signed affidavit by petitioners did not include the required language. McKenna agrees on this point and says the Secretary of State can reject petitions if they do not have the required language, but it is OK if they are not signed. I do not understand this reasoning and feel that if this issue goes to Court that McKenna‘s opinion will be voided. His line of reasoning is flawed when one reads the actual wording and reads what is posted on the Legislative website about this bill.