Ballot Title for Initiative 333 v. Gorton
| Decision Date | 07 January 1977 |
| Docket Number | No. 44238,44238 |
| Citation | 558 P.2d 248,88 Wn.2d 192 |
| Parties | In re the Matter of the BALLOT TITLE FOR INITIATIVE 333 et al., Petitioners, and Slade GORTON, Attorney General, State of Washington, Respondent. |
| Court | Washington Supreme Court |
Owens, Weaver, Davies & Dominick, F. Parks Weaver, Jr., William D. Dexter, Olympia, for appellants.
Slade Gorton, Atty. Gen., Phil Austin, Olympia, for respondent.
Petitioners filed a writ of certiorari with this court seeking review of the trial court's dismissal of their petition and appeal challenging an initiative ballot title.
On April 27, 1976, a proposed initiative relating to public employees' retirement plans was filed with the Secretary of State's office and was assigned serial No. 333. Pursuant to RCW 29.79.040, the Attorney General filed a ballot title for Initiative 333. 1 On May 14, 1976, petitioners filed a petition and appeal in the Thurston County Superior Court challenging the ballot title. This petition and appeal was dismissed on the grounds that petitioners lacked standing under RCW 29.79.060 to maintain the challenge, because they were not the proposers of Initiative 333. 2
Following a consideration of the briefs and oral arguments of petitioners and respondent and amicus curiae (representing the proposers of Initiative 333), this court issued an order that the writ be granted and that the case be remanded to the Superior Court for an immediate hearing and decision on the merits. We now set forth the rationale for the order.
Petitioners contend that RCW 29.79.060, insofar as it precludes opponents of the initiative from challenging the Attorney General's ballot title, is unconstitutional under Const. art. 1, § 12, 3 and the equal protection clause of the fourteenth amendment to the United States Constitution. 4
The guarantee of equal protection and the prohibition of special privileges and immunities require that reasonable grounds must exist for making a distinction between those persons within and those persons without a specified class. Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968); Seattle v. See, 67 Wash.2d 475, 408 P.2d 262 (1965), Rev'd on other grounds, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960).
Respondent and amicus curiae argue that reasonable grounds do exist for restricting review of ballot titles to proposers of the initiative. Respondent argues that if opponents are allowed to challenge the ballot title, they will use this right to slow down the initial steps in readying petitions for signatures. An initiative must be filed with the Secretary of State's office within 10 months prior to the election, and the petitions with signatures must be filed not less than 4 months before the election. 5 This leaves a period of approximately 6 months to gather the needed signatures.
Fear of delay tactics by opponents is not a reasonable ground for excluding review by opponents. RCW 29.79.060 requires the filing of an appeal within 10 days from the time the Attorney General files the ballot title with the Secretary of State. It also provides that (Italics ours.) These requirements adequately protect the proposers from challenges brought for delay purposes only. If it is patently clear that an appeal has been brought for delay purposes only, the trial court can and should dispose of the matter with great dispatch.
Amicus curiae argues that the initiative is the product of the proposers, and the purpose of the limited judicial review is to provide a remedy for proposers if the ballot title does not accurately reflect their intended purpose. We do not deny that the proposers of an initiative have a definite interest in a ballot title which reflects their intended purpose. However, this is not to say that opponents have no interest in a ballot title which accurately reflects the purpose of the initiative. Just as the ballot title may not accurately reflect the proposers' purpose, it may also be misleading in favor of the proposers' purpose. RCW 29.79.040 provides the guidelines for drafting the ballot title. It requires the Attorney General to 'give a true and impartial statement of the purpose of the measure; (the statement) shall not be intentionally an argument, nor likely to create prejudice, Either for or against the measure.' (Italics ours.) If impartiality is required, it is unreasonable to deny review to opponents. Denying review to opponents has the effect of allowing a ballot title which is favorable to the proposers' purpose to remain the permanent ballot title while allowing proposers to challenge a ballot title which is unfavorable to their purpose.
Finally, it is argued that limiting review to proposers is reasonable, because proposers are a readily identifiable group and opponents, who are not a readily identifiable group, have an adequate remedy in that any person may challenge the explanatory statement in the voters' pamphlet. 6 We do not believe it is reasonable to limit review to proposers merely because they are a more identifiable group than are opponents. 7
In State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916), opponents of a proposed initiative brought an action to enjoin the Secretary of State and other persons from preparing petitions for the initiative. The opponents asserted the preamble to the proposed measure was argumentative. This court discussed the right of the opponents to bring the action.
Now, are proponents proceeding in their legislative capacity by the prescribed method? As private members of the legislative body in mass, certain legal political rights are conferred upon them to be exercised in a prescribed manner. These rights must be considered as no greater than the rights of other members of the legislative body in mass to oppose the proposed measure. It cannot be assumed that the right of one legal voter to attempt to obtain the enactment of a given measure is greater than the right of other legal voters to attempt to prevent its passage. All are equal before the law. There is no presumption that, because certain legal voters or legislators desire and propose certain legislation upon a certain subject, the same is desired by the voters in mass. In fact, it can be assumed as a safe postulate that other members of the voting mass will oppose it. It is the sole ground of relators here that they are entitled to interfere in the matter because they are voters and do oppose the proposed measure, irrespective of the merits of the measure and regardless of the reasons for their opposition, and that if the proponents of the measure are proceeding in accordance with the positive law, their only recourse is at the polls. This position is sound.
State ex rel. Berry v. Superior Court, supra at 27, 159 P. at 95.
Proposers are readily identifiable because they signed the proposed initiative. This does not mean opponents are so unidentifiable that it is reasonable to deny them a right to challenge the ballot title given by the Attorney General. First, opponents must be legal voters. Second, opponents must have an identifiable interest in challenging a misleading ballot title. This interest in challenging the ballot title must coexist with an alleged violation of RCW 29.79.040. If opponents meet the above criteria, they are sufficiently identifiable to seek review of the ballot title.
Further, it is unreasonable to limit review of the ballot title to proposers on the grounds that...
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