Community Care Coalition of Wash. v. Reed
| Decision Date | 05 February 2009 |
| Docket Number | No. 81857-6.,81857-6. |
| Court | Washington Supreme Court |
| Parties | COMMUNITY CARE COALITION OF WASHINGTON; Home Care of Washington, Inc.; The Fredrickson Home; Cynthia O'Neill, A Washington Citizen and Taxpayer; Ron Ralph and Lois Ralph, husband and wife and Washington Citizens and Taxpayers, Petitioners, v. Sam REED, Secretary of State, Respondent, and Linda Lee and People for Safe Quality Care, Intervenors/Respondents. |
Kathleen Dell Benedict, Narda D. Pierce, Benedict Garratt Pond & Pierce, PLLC, Olympia, WA, for Petitioners.
Jeffrey Todd Even, Maureen A. Hart, Attorney General's Office, Olympia, WA, for Respondent.
Eric D. `Knoll' Lowney, Smith & Lowney PLLC, Michael Craig Subit, Frank Freed Subit & Thomas LLP, Seattle, WA, for Intervenors/Respondents.
Shawn Timothy Newman, Attorney at Law, Olympia, WA, for Amicus Curiae on behalf of Initiative and Referendum Institute.
¶ 1 Several petitioners led by the Community Care Coalition of Washington filed an original action in this court seeking to compel Secretary of State Sam Reed to accept petitions submitted for Initiative Measure No. 1029 (I-1029) as petitions for an initiative to the legislature. Petitioners conversely ask us to prohibit the secretary of state from certifying I-1029 as an initiative to the people for placement on the November 2008 general election ballot. We heard the matter en banc on September 4, 2008, and issued an order on September 5 dismissing the petition with an explanatory opinion to follow in due course. This is our opinion explaining our order.
¶ 2 The pertinent facts are undisputed.1 On March 12, 2008, Linda Lee filed with the secretary of state's office a proposed initiative dealing with background checks and training and certification of long-term care workers. On the accompanying form affidavit, Lee marked the box indicating that the measure was to be submitted to the "people." Agreed Statement of Facts, Ex. A. The secretary of state's office thereafter processed the proposed initiative in every respect as an initiative to the people, listing it as such on its website. The code reviser issued a certificate of review, and Lee filed the final version of the proposed initiative on March 28, 2008. On the same date, the secretary of state's office assigned the initiative the number 1029 (). See RCW 29A.72.040. The attorney general's office then drafted a ballot title and a ballot measure summary. Though given the opportunity to do so, Lee evidently did not have the secretary of state's office review the final petition form.
¶ 3 Lee and other proponents of I-1029 prepared and circulated petitions for voter signatures. Below the title graphics stating "YES" to "I-1029," the petition set forth the "BALLOT TITLE" as prepared by the attorney general's office. Agreed Statement of Facts, Ex. M. Then came the "BALLOT MEASURE SUMMARY." Id. Following that, the petition recited the required language addressed "To the Honorable Sam Reed, Secretary of State of the State of Washington." Id. The language required differs depending on whether the initiative is directed to the people or to the legislature. See RCW 29A.72.120, .110. The petition here had a long paragraph directing that the initiative "be transmitted to the legislature of the State of Washington at its next ensuing regular session, and [that] the legislature [] enact said proposed measure into law." Agreed Statement of Facts Ex. M (emphasis added).
¶ 4 On the reverse side of the petition, immediately above the text of the initiative, a subtitle stated, "BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON." Id. The body of the initiative included expressions of "the intent of the people" in enacting the petition. Id. In numerous places the initiative would mandate the Department of Social and Health Services and the Department of Health to implement rules by August 1, 2009. It would also require innovative training methods until December 31, 2009, and certain sections of the initiative are contingent on proposed 2008 legislation taking or not taking effect. The act implemented by the initiative is to be called the "better background checks and improved training for long-term care workers for the elderly and persons with disabilities initiative of 2008." Id. The petition also designated a final mailing deadline of June 25, 2008, which corresponded to the final date for mailing petitions for an initiative to the people.
¶ 5 Around June 25, 2008, a citizen brought a blank I-1029 petition to the secretary of state's office and pointed out that language on the face of the petition indicated it was an initiative to the legislature. On July 2, petitioner Community Care Coalition of Washington urged the secretary of state to reject the I-1029 petitions. On July 3, the last day petitions for initiatives to the people could be filed with the secretary of state, Lee submitted I-1029 petitions to that office for filing and certification.
¶ 6 On July 14, a deputy solicitor general responded to Community Care Coalition of Washington on behalf of the secretary of state, acknowledging its concerns but informing it that the secretary had decided to process the petitions as supporting an initiative to the people notwithstanding the erroneous language in the petitions. The deputy solicitor general wrote that there was "no doubt that those who filed and circulated the petitions on I-1029 intended to file and process an initiative to the people and built their petition campaign around the constitutional deadlines for this form of an initiative." Agreed Statement of Facts Ex. O, at 3. The deputy solicitor general indicated, further, that he was not aware of any evidence that the proponents or the press ever described the initiative as one to the legislature or noted the potential ambiguity on the face of the petition. Nor was there any basis, he said, to believe that the form of the petition influenced the number of valid signatures gathered for the initiative. The deputy solicitor general further wrote that rejecting the petitions "would fail to afford Washington's voters the opportunity to consider, and either approve or reject the measure, where a constitutionally requisite number of qualified voters express support for its enactment to be considered." Id.
¶ 7 On July 18, petitioner Cynthia O'Neill asked the attorney general by letter to file an action against the secretary of state to prevent him from processing the I-1029 petitions as supporting an initiative to the people and to require him instead to process the measure as an initiative to the legislature. Petitioners then filed this original action in this court on July 22. The solicitor general subsequently informed petitioners that the secretary of state had acted within his lawful discretion and that the attorney general's office would defend the secretary in this matter.
¶ 8 Lee and People for Safe Quality Care, the official committee supporting I-1029, have intervened in the action, and the Initiative and Referendum Institute has filed an amicus curiae brief supporting the petition. After we denied petitioners' motion for an emergency injunction, the secretary of state certified I-1029 as an initiative to the people on August 13, 2008. The voters approved I-1029 in the November 4, 2008, general election.
¶ 9 The initiative is "[t]he first power reserved by the people." CONST. art. II, § 1(a). This power is self-executing, and the legislature's authority to affect the initiative process is limited to facilitating its operation. CONST. art. II, § 1(d). Similarly, the authority of the judiciary over the process is limited, since questions regarding the initiative process are political, not judicial, unless express statutory or constitutional laws make the question judicial. Schrempp v. Munro, 116 Wash.2d 929, 932, 809 P.2d 1381 (1991) (quoting State ex rel. Donohue v. Coe, 49 Wash.2d 410, 417, 302 P.2d 202 (1956)).
¶ 10 There are two types of initiatives, those to the legislature and those to the people. CONST. art. II, § 1(a). Apart from a general requirement that every initiative petition set forth the full text of the proposed measure, the constitution is silent on the precise form of such petitions. Id. Consistent with its constitutional authority to facilitate the initiative process, the legislature enacted provisions relating to the initiative process and petition forms. See ch. 29A.72 RCW.
¶ 11 Whether the petition is for an initiative to the legislature or for an initiative to the people, the petition "must be substantially" in the form provided under RCW 29A.72.110 () or RCW 29A.72.120 (). See RCW 29A.72.170. These provisions, in turn, specify the following headings: "INITIATIVE PETITION FOR SUBMISSION TO THE LEGISLATURE" or "INITIATIVE PETITION FOR SUBMISSION TO THE PEOPLE." RCW 29A.72.110, .120. If the initiative is to be submitted to the legislature, it must state that the signers direct the secretary of state to transmit the measure to the "legislature" and that they "petition the legislature to enact" the proposed measure. RCW 29A.72.110. If the initiative is to be submitted to the people, it must state that the signers direct the proposed measure "be submitted to the legal voters of the State of Washington for their approval or rejection at the general election." RCW 29A.72.120.
¶ 12 The I-1029 petition was flawed. To the extent it was meant to be a petition for an initiative to the people, it lacked the capitalized subtitle indicating that it was an "INITIATIVE PETITION FOR SUBMISSION TO THE PEOPLE." RCW 29A.72.120. And the language of instruction directed to the secretary of state was in the form required for initiatives to the legislature. But to the extent the petition identified the...
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