On Thursday we published our analysis of Initiative 517. Our study concluded (in-part):
The people’s right of initiative and referendum should be robustly protected, but signature gathering rules should not be expanded to infringe on the private property rights of business owners who do not want to engage in a given political debate. Based on the text of Initiative 517 and the lack of definition of important terms, such as 'store' and 'public building,' passage of the Initiative would likely lead to lengthy court battles to determine whether its provisions infringe on constitutional property rights. In the meantime, property owners would be uncertain about whether they could legally prevent signature gatherers from approaching customers entering or leaving their place of business.
This led to several questions from the Yes on I-517 campaign. Their first question was wondering how we came to the conclusion that the measure would impact private property rights. Here is my explanation.
Under current case law and existing statutes, the state of access to private property (stores) for signature gathering is limited. However, the plain text of I-517 adds this definition to law (from Section 2):
Signature gathering and petition signing for an officially filed and processed initiative or referendum shall be a legally protected activity on public sidewalks and walkways and all sidewalks and walkways that carry pedestrian traffic, including those in front of the entrances and exits of any store, and inside or outside public buildings such as public sports stadiums, convention/exhibition centers, and public fairs.
Note the separate and distinct clauses of this section. It is not limited to "public sidewalks" but "all sidewalks and walkways that carry pedestrian traffic, including those in front of the entrances and exits of any store..."
There is no exception or limitation to this clause of I-517. It must be read as stated to include ALL sidewalk and walkways in front of the entrance and exits of ANY STORE.
As is true with all laws passed by the legislature and people (see the legislature's two tax increases passed this year to change a prior court ruling) policymakers can attempt to change prior court restrictions. In the case of the language being added by I-517, however, the change proposed conflicts with prior court constitutional rulings on property rights.
This problem could have been avoided, however, by defining the terms of I-517 (especially "store") clearly by stating the explicit intent was not to change current case law. I-517 contains no such definitions or intent section; however, instead it includes a liberal construction clause of its text leading the analysis to stand on the plain text of the measure.
The Yes on I-517 campaign also questions the need to define public buildings in the text of the measure due to the current definitions in RCW 74.18.200 (6) and RCW 43.17.200. I took these existing RCWs under consideration during the course of my research on I-517 but did not find them to be helpful to the debate.
By pointing to RCW 74.18.200 (6) the Yes on I-517 campaign appears to be trying to draw a connection between the Department for the Blind's Business Enterprise Program and signature gathering. Previously, however, the Yes on I-517 campaign told me that public buildings meant all buildings open and paid for by the public. When asked if K-12 schools would be considered “public buildings” under I-517, the Yes on I-517 campaign said:
If it is open to and paid for by the public, yes but obviously no voters in K-12 (kindergartners do not vote) but at public colleges, if it is open to and paid for by the public, yes.
Drawing the connection to RCW 74.18.200 (6) however, calls into question I-517's desire to cover sports stadiums since the RCW clarifies the definition relates to buildings "dedicated to the administrative functions of the state or any political subdivision."
The same problem also exists with relying on RCW 43.17.200 since sports stadiums and fairs arguably would not be included in the definition.
Since I-517 did not define public buildings, determining its limitations will result in court or legislative guidance as we highlighted (page 8):
Due to the lack of definition of 'public building' in Initiative 517 it is likely the guidelines for the interpretation of this provision will require additional guidance from the courts or lawmakers if Initiative 517 is adopted.