Brower v. State

• Decision Date: 24 December 1998
• Docket Number: No. 65992-3,65992-3
• Citation: 969 P.2d 42,137 Wn.2d 44
• Court: Washington Supreme Court
• Parties: Jordan BROWER, an individual, Appellant, v. STATE of Washington; Ralph Munro, as Secretary of State; and Football Northwest, a Washington general partnership, Respondents.

Page 44

137 Wn.2d 44

969 P.2d 42

Jordan BROWER, an individual, Appellant, v. STATE of Washington; Ralph Munro, as Secretary of State; and Football Northwest, a Washington general

partnership, Respondents.

No. 65992-3.

Supreme Court of Washington,

En Banc.

Argued May 27, 1998.

Decided Dec. 24, 1998.

Eugster & Haskell, Stephen Eugster, Spokane, Shawn Newman, Olympia, for Appellant

Christine Gregoire, Atty. Gen., Jeffrey Even, James Pharris, Asst. Attys. Gen., Olympia, Foster, Pepper & Shefelman, Peter DiJulio, Warren Pheaume, Grover Cleveland, Seattle, for Respondents.

MADSEN, J.

This case concerns Laws of 1997, ch. 220, and Referendum 48, which provide for construction and financing of new stadium facilities for the Seattle Seahawks, a professional football team. Appellant Jordan Brower raises numerous constitutional challenges to the legislation, primarily in connection with provisions which conditioned referral of Referendum 48 to the people on the payment of costs of the referendum election by a private entity, the "team affiliate." Other challenges are that the Act violates the single subject rule of article II, section 19 of the Washington Constitution, and that it contains an invalid emergency clause. We conclude the legislation is valid and affirm summary judgment in favor of respondents. In reaching this conclusion, we note that our recent decision in CLEAN v. State, 130 Wash.2d 782, 928 P.2d 1054 (1996), dictates the result on a number of the issues Brower has raised.

FACTS

During the 1997 legislative session, the Legislature enacted a bill (the Act) providing for construction and financing of a new football and soccer stadium and exhibition center as a public-private enterprise. Laws of 1997, ch. 220. At the time the legislation was considered, Respondent Football Northwest, Inc., had an option to purchase the Seattle Seahawks football team from its owner who wanted to move the team to California. Football Northwest declared it would not exercise the option to purchase, which was to expire unless exercised by July 1, 1997, unless the legislation was enacted.

The Legislature did not pass the bill outright, however. Instead, the Legislature referred sections 101 through 604 of the Act to the people. Among other things, this part of the Act authorizes creation of a public stadium authority by "any county that has entered into a letter of intent relating to the development of a stadium and exhibition center" with a "team affiliate" or entity with a contractual right to become a "team affiliate." Section 102; RCW 36.102.020. ¹ The stadium authority can then enter into agreements with a professional football team for development of a new stadium and exhibition center. Sections 105, 106; RCW 36.102.050, .060.

Mr. Brower's constitutional challenges primarily concern sections 605 through 608 of the Act, which were not referred to the people. Section 607 directed the Secretary of State to submit sections 101 through 604 to a vote of the people on or before June 20, 1997. RCW 36.102.803. The Secretary of State designated these sections as Referendum Bill No. 48 pursuant to RCW 29.79.250. Section 607 also directed the Attorney General to prepare an explanatory statement and transmit it to the Secretary of State; directed the Secretary of State to prepare a voters' pamphlet addressing the referendum measure; provided for an accelerated canvass of the results of the election; and provided that the special election would be limited to submission of the Act, i.e., no other ballot measures could be submitted for a vote at the same time. Id.

Section 605 stated that "[t]he legislature neither affirms nor refutes the value of this proposal," set forth the Legislature's intent that the voters be provided an opportunity to express their decision, and concluded by stating that "[i]t is also expressed that many legislators might Section 606 provided that the Act would be null and void unless the team affiliate entered into an agreement with the Secretary of State to reimburse the state and counties for the cost of a special election to be held on Referendum 48. RCW 36.102.802. A reimbursement agreement for costs of the election was entered into by the Secretary of State and the Seattle Seahawks, Inc., on May 14, 1997. Seattle Seahawks, Inc., immediately assigned all of its interest in and obligations under the agreement to Football Northwest. The expenses have been paid.

personally vote against this proposal at the polls, or they might not." RCW 36.102.801.

Section 608 contained an emergency clause providing that sections 606 and 607 (the provisions for conducting the special election and for reimbursement of the costs of the election) should take effect immediately. Laws of 1997, ch. 220, § 608.

The Act had as its legislative title: "AN ACT Relating to a mechanism for financing stadium and exhibition centers and education technology grants;...." Laws of 1997, ch. 220, at 1060. While provision was originally made in the Act to use any excess funds collected over bonded indebtedness for computer purchases for schools, i.e., education technology grants, HB 2192, § 24(4), this provision was deleted before passage by the Legislature, although the reference remained in the title. The ballot title of Referendum 48 prepared by the Attorney General and included in the voters' pamphlets and on the ballot stated: "Shall a public stadium authority be authorized to build and operate a football/soccer stadium and exhibition center financed by tax revenues and private contributions?" Clerk's Papers (CP) at 93.

On May 2, 1997, prior to the June 17 date set for the special election, Brower filed a complaint in Thurston County Superior Court against the State seeking an injunction to prevent the election on the basis that the Act contained an invalid emergency clause. In an amended complaint, he also sought declaratory relief, alleging that the Following the election, the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the State and Football Northwest. This court granted direct review of Brower's appeal. Respondent Football Northwest has moved to strike portions of Brower's brief. The motion has been passed to the merits.

Act is unconstitutional on numerous grounds. On May 21, 1997, Football Northwest moved to intervene. All parties stipulated to an order permitting intervention, which was entered May 27, 1997. On June 9, 1997, the superior court entered an order staying all proceedings until after the June 17, 1997 special election. Referendum 48 was passed by a margin of 51.1% with a voter turnout of 51%.

ANALYSIS

Authority to Submit Referendum 48 to the People

We are reviewing a grant of summary judgment in favor of respondents. Review of summary judgment is de novo, with the appellate court engaging in the same inquiry as the trial court. Gunnier v. Yakima Heart Ctr., Inc., 134 Wash.2d 854, 858, 953 P.2d 1162 (1998). Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

Mr. Brower raises numerous constitutional challenges to the legislation. A statute is presumed to be constitutional and the challenger bears the burden of establishing the unconstitutionality of the legislation beyond a reasonable doubt. Island County v. State, 135 Wash.2d 141, 146-47, 955 P.2d 377 (1998); Leonard v. City of Spokane, 127 Wash.2d 194, 197, 897 P.2d 358 (1995). The presumption of constitutionality applies to measures approved by the people. State ex rel. O'Connell v. Meyers, 51 Wash.2d 454, 458, 319 P.2d 828 (1957); Washington Fed'n of State Employees v. State, 127 Wash.2d 544, 558, 901 P.2d 1028 (1995).

The people's power to legislate directly takes two forms The referendum is the second power reserved to the people, permitting the voters to approve or reject a measure which has been enacted by the Legislature. Const. art. II, § 1(b). A measure may be referred to the people in two ways. First, voters may refer a measure by submitting petitions signed by the required number of voters to the Secretary of State within 90 days of the end of the session in which the measure was enacted. Id. at § 1(b), (c). Second, the Legislature may refer a measure to the people without the voters petitioning for a referendum. Id. This case involves a measure referred to the people by the Legislature.

the initiative and the referendum. Const. art. II, § 1. An initiative is a proposed law directly from the people through the filing of signed petitions with the Secretary of State. Const. art. II, § 1(a). An initiative may be an initiative to the people, or to the Legislature. The former is placed directly on the ballot for voter approval or rejection. The latter may be enacted by the Legislature, or the Legislature may decline to act on the measure, in which case it will be placed on the ballot, or the Legislature may enact an alternative to the initiative, in which case both the initiative and the legislative alternative will be placed on the ballot. Id.

1. Conditioning Act on agreement of private party to reimburse costs of special election.

Mr. Brower maintains that the Legislature does not have general authority to refer a matter to the people, but instead has only that authority expressly set out in art. II, § 1(b). Here, the Legislature provided that the Act would be null and void unless the team affiliate entered into an agreement with the Secretary of State to reimburse the state and the counties for the costs of the special election. This, Brower contends, illegally placed the power of referendum in the hands of a private party, because no referendum would occur unless the team affiliate agreed to reimburse the costs of the special election. Brower further argues that aside from art. II, § 1(b), the Legislature does The legislative authority of the State is vested in the...