Farris v. Munro

• Decision Date: 21 April 1983
• Docket Number: No. 48806-1,48806-1
• Citation: 99 Wn.2d 326,662 P.2d 821
• Parties: Michael P. FARRIS, Petitioner, v. Ralph MUNRO, as Secretary of State, John Spellman, in his official capacity as Governor, Respondents.
• Court: Washington Supreme Court

Page 326

99 Wn.2d 326

662 P.2d 821

Michael P. FARRIS, Petitioner, v. Ralph MUNRO, as Secretary of State, John Spellman, in his

official capacity as Governor, Respondents.

No. 48806-1.

Supreme Court of Washington,

En Banc.

April 21, 1983.

Michael P. Farris, pro se.

Kenneth O. Eikenberry, Atty. Gen., Thomas R. Bjorgen, Asst. Atty. Gen., Olympia, for respondents.

BRACHTENBACH, Justice.

This case involves a challenge to the recently established state lottery. That challenge resulted in a petition for a writ of mandamus to declare the lottery statute unconstitutional and compel the Secretary of State to accept petitioner's filing of a proposed referendum opposing the statute. We denied the petition on the day of oral argument, concluding that the original constitutional amendment allowing lotteries, the 56th amendment, is constitutional and that the lottery act is exempt from referenda under the terms of the 7th amendment. Const. art. 2, § 24 (amend. 56); Const. art. 2, § 1 (amend. 7).

The disputed legislation was passed during an extraordinary session of the Legislature called by the Governor in response to a "fiscal and budgetary crisis." In calling the session, the Governor requested the Legislature to "modify laws relating to the revenue and expenditures of the state." The Legislature responded in part by passing the state lottery bill on July 1, 1982, codified as RCW 67.70.010-.903 (hereinafter Act). The Act created a statewide lottery system under the administration of a director and a 5-member commission. The commission is directed to "produce the maximum amount of net revenues for the state consonant with the dignity of the state and the general welfare of the people." RCW 67.70.040(1). Annual gross revenues from the lottery are to be distributed as follows: (1) at least 45 percent to be paid as prizes; (2) at least 40 percent to be transferred to the state general fund; and (3) no more than 15 percent to pay for the costs of administration. RCW 67.70.040(1)(k).

The petitioner, Michael Farris, opposed the Act and attempted to have it submitted to the voters in the form of a referendum. This state's referendum provisions empower the people to approve or reject laws passed by the Legislature. Const. art. 2, § 1; Trautman, Initiative and Referendum in Washington: A Survey, 49 Wash.L.Rev. 55 (1973). On July 7, 1982, an initial referendum petition was submitted to respondent Secretary of State, as required under RCW 29.79.010. The Secretary of State refused to accept that initial petition since Governor Spellman had not signed the bill. Petitioner then filed a petition in this court for a writ of mandamus, which initiated a series of petitions and hearings. The parties ultimately agreed to allow petitioner to submit a third amended petition. This final petition added Governor Spellman as a respondent, sought an injunction against enforcement of the Act, and reiterated the claim that the Act was unconstitutional.

The first issue is whether petitioner had standing to challenge the constitutionality of the State Lottery Act. Petitioner characterizes himself as a taxpayer, allegedly attempting to restrain the unlawful expenditure of state funds. In Washington, absent statutory authorization, a taxpayer does not have standing to challenge the legality of the acts of public officers unless he first requests or demands that a proper public official bring suit on behalf of all taxpayers. Tacoma v. O'Brien, 85 Wash.2d 266, 269, 534 P.2d 114 (1975); Reiter v. Wallgren, 28 Wash.2d 872, 876-77, 184 P.2d 571 (1947). Once such a request is refused, the taxpayer has standing to bring the suit. An exception to this demand requirement allows a party to allege facts showing that such a demand would have been useless. Reiter v. Wallgren, supra at 877-78, 184 P.2d 571. In the instant case, petitioner failed to make a request upon the Attorney General to bring suit, and does not allege any facts indicating that such a request would have been useless. He instead argues that because the Attorney General is the opposing counsel in this case, defending the validity of the Act, it obviously would have been useless to request that the Attorney General bring suit to oppose the same Act. That argument, however, ignores this court's explicit holding that even though the Attorney General is defending against the taxpayer's suit such a demand is not considered useless. Reiter v. Wallgren, supra at 877-78, 184 P.2d 571. The Reiter court reached that conclusion because such a defense is part of the Attorney General's statutory duties, and in some instances the Attorney General must both prosecute and defend a suit. See, e.g., State ex rel. Troy v. Yelle, 27 Wash.2d 99, 176 P.2d 459 (1947); RCW 43.10.030.

Despite petitioner's failure to satisfy these standing requirements, he raised an issue vital to the state revenue process that remained unresolved at the time of this suit and might have affected a measure on the November 1982 ballot. Thus, the case presented issues of significant public interest that, by analogy to other decisions, allow this court to reach the merits. In suits not involving taxpayers this court has recognized that standing questions should be analyzed in terms of the public interests presented.

Where a controversy is of serious public importance and immediately affects substantial segments of the population and its outcome will have a direct bearing on the commerce, finance, labor, industry or agriculture generally, questions of standing to maintain an action should be given less rigid and more liberal answer.

Washington Natural Gas Co. v. PUD 1, 77 Wash.2d 94, 96, 459 P.2d 633 (1969); accord, Vovos v. Grant, 87 Wash.2d 697, 701, 555 P.2d 1343 (1976). In another context, we recently decided to not dismiss a case for failure to join an indispensable party and instead reached the substantive issue presented where that

issue is a matter of continuing and substantial interest, it presents a question of a public nature which is likely to recur, and it is desirable to provide an authoritative determination for the future guidance of public officials.

Cathcart-Maltby-Clearview Comm'ty Coun. v. Snohomish Cy., 96 Wash.2d 201, 208, 634 P.2d 853 (1981). That rationale is derived from some of our decisions involving moot questions, e.g., In re Patterson, 90 Wash.2d 144, 149, 579 P.2d 1335 (1978), and similar considerations lead us to address the substantive issues presented here.

The initial argument is that the Act is unconstitutional because the 56th amendment, which allows lotteries was invalidly adopted since it included two subjects when submitted to the voters. The language of the 37th amendment prohibits the adoption of dual subject amendments:

if more than one amendment be submitted [to the people], they shall be submitted in such a manner that the people may vote for or against such amendments separately.

Const. art. 23, § 1 (amend. 37). The original constitutional provision governing lotteries stated: "[t]he legislature shall never authorize any lottery or grant any divorce." Const. art. 2, § 24. In 1972, amendment 56 was adopted, changing the relevant provisions as follows:

The legislature shall never grant any divorce. Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon.

(Italics ours.) Const. art. 2, § 24 (amend. 56). In effect, the amendment retained the prohibition against the Legislature granting a divorce, but replaced the absolute prohibition against lotteries with a conditional authorization.

In order to constitute multiple amendments within the meaning of the 37th amendment:

the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other.

Gottstein v. Lister, 88 Wash. 462, 470, 153 P. 595 (1915), quoting State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785 (1882). In the present case, divorce and lotteries appear to be such distinct and separate subjects. However, the absolute prohibition against the Legislature granting a divorce was not changed from the original provision to the amendment. The 56th amendment only removed the prohibition against lotteries and replaced it with a conditional authorization. Therefore, the voters only had to decide whether to approve or disapprove the single amendment relating to lotteries, irrespective of their preference on the divorce provisions. The primary objection to amendments with more than one subject is that the voters must approve or disapprove the entire measure as a whole, rather than vote separately for or against each subject. Gottstein v. Lister, supra 88 Wash. at 471-72, 153 P. 595; see generally Annot., 94 A.L.R. 1510 (1935). This practice is sometimes referred to as "logrolling", but it is not present in the instant case because irrespective of the outcome of the vote on the lottery amendment the constitutional prohibition against legislative grants of divorce remained in force. If the lottery amendment were approved it included the divorce prohibition; if rejected, the original provisions prohibiting both divorce and lottery remained in effect. Thus, the voters were not faced with a combined proposition that required the support of an objectionable provision in order to secure passage of a preferred provision. See, e.g., Idaho Water Resource Bd. v. Kramer, 97 Idaho 535, 550-53, 548 P.2d 35 (1976). Also, the voter's pamphlet explanation of amendment 56 clearly indicated that the voters were only deciding whether to amend the constitution in regard to lotteries. Official Voters Pamphlet 40-41, 102 (1972). Consequently, we hold that the 56th amendment, as adopted, did not...