Ford v. Logan, 41722

• Decision Date: 15 April 1971
• Docket Number: No. 41722,41722
• Citation: 483 P.2d 1247,79 Wn.2d 147
• Court: Washington Supreme Court
• Parties: Robert FORD, Respondent, v. Ed LOGAN et al., Respondents, and Overtaxed, Inc., a Non-Profit Washington Corporation, Petitioner.

Page 147

79 Wn.2d 147

483 P.2d 1247

Robert FORD, Respondent, v. Ed LOGAN et al., Respondents, and Overtaxed, Inc., a Non-Profit Washington Corporation, Petitioner.

No. 41722.

Supreme Court of Washington, En Banc.

April 15, 1971.

Rehearing Denied June 4, 1971.

Caplinger & Munn, James S. Munn, Seattle, for appellant.

Houger, Garvey & Schubert, John R. Allison, Seattle, for respondent.

NEILL, Associate Justice.

This is a taxpayer's declaratory judgment action in which he seeks to enjoin King County election officials from placing on the ballot a measure entitled: 'Initiative No. 3: A Repeal of King County Charter.' ¹ This The requisite number of signatures under the county charter was obtained and all charter procedural steps for placing the initiative on the ballot have been completed. Plaintiff asserts that the measure should not be placed on the ballot because (1) the King County Charter cannot be amended or repealed by initiative, and (2) the content of the proposed initiative is confusing, misleading, and fails to adequately apprise the voters of the consequences of their vote.

initiative was proposed by a local group known as Overtaxed, Inc. Overtaxed was not an original party to this action.

The trial court entered an oral decision in favor of plaintiff on each of the above grounds. Thereafter, Overtaxed learned that defendants of record had no plans to appeal. Overtaxed then petitioned to intervene as a defendant. The trial court allowed intervention on the understanding that it was solely for purposes of appeal and that Overtaxed would not contest the trial court's discretion as to supersedeas bond. That same day, the trial court entered formal findings of fact, conclusions of law, judgment and decree in favor of plaintiff. We granted Overtaxed's petition for a writ of certiorari.

At the outset, plaintiff, Mr. Ford, challenges the trial court's action in permitting Overtaxed to intervene after oral decision, but prior to formal disposition of the cause. Intervention was granted under CR 24(b)(2) which states:

(b) Permissive Intervention. Upon timely application, anyone may be permitted to intervene in an action:

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(2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a The trial court's decision under this rule is discretionary, and the question on review is whether that discretion has been abused. Plaintiff Ford contends that the application to intervene was not timely made and that the granting thereof unduly prejudices him.

federal or state governmental officer or agency or upon any regulation, order, requirements, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Plaintiff cites our holding that a complaint in intervention cannot be filed after final judgment (Portland Ass'n of Credit Men, Inc. v. Earley, 42 Wash.2d 273, 254 P.2d 758 (1953)), and analogizes that the underlying policy of that case should bar 'judgment speculation' by potential parties by awaiting oral decision, thus prohibiting intervention by Overtaxed. Earley, supra, was decided under RCW 4.08.190 which expressly provided that intervention must have been before trial. That statute has been superseded by CR 24(b) which eliminates the 'before trial' requirement of the statute and injects the discretion of the trial court on the issue of a 'timely application.' The trial court noted that intervention at this stage of the case would have the effect only of allowing an appeal, and would not impose further trial litigation. The undue prejudice asserted by plaintiff is the suggested necessity of submitting additional evidence as to the appropriate amount for a supersedeas bond. However, the grant of intervention virtually eliminated this possibility, in that it was partially premised on an agreement by intervenor to accept the court's discretion as to supersedeas bond. Moreover, the trial court was presented with a situation in which intervention by Overtaxed was the only available means by which the petition signatories would have the benefit of an appeal, a situation that did not manifest itself until after the oral decision. Under these circumstances The initiative aspires to 'amend' the King County Charter by deleting all of its sections, thus repealing it. For all realistic purposes, the measure seeks a repeal of the King County Charter, and we will so treat it. The facts present three basic issues: (1) Do our courts have jurisdiction to determine whether the subject matter of a proposed initiative is within the scope of the initiative power before the proposal is enacted by the electorate? We conclue that they do. (2) Do the electorate of King County have the power to directly repeal their charter by initiative? We conclude that they do not. (3) Is this proposed initiative invalid as confusing in content or misleading in ballot title? In view of our conclusions as to the other issues, we do not reach this question.

we cannot say that the trial court abused its discretion in permitting the intervention.

We first meet the contention that courts lack jurisdiction at this stage of the initiative process. In support of this contention, intervenor cites cases where, in various contexts, we have stated that courts will not determine the validity of contemplated legislation prior to its enactment and that courts have no jurisdiction to intervene in the legislative process. State ex rel. Griffiths v. Superior Court, 92 Wash. 44, 159 P. 101 (1916); State ex rel. Donohue v. Coe, 49 Wash.2d 410, 302 P.2d 202 (1956); State ex rel. O'Connell v. Kramer, 73 Wash.2d 85, 436 P.2d 786 (1968). A reading of these cases discloses that in each instance we either were considering subject matter clearly legislative in nature or were not confronted with the threshold question of what is legislative.

In Griffiths, supra, the subject matter of the proposed initiative was an amendment to existing workman's compensation law. we intervened in the legislative process to the extent of excising portions of the preamble to the proposed initiative which were argumentative, rather than legislative, in nature and therefore beyond the proper exercise of the initiative power. Accord, State In Donohue, supra, the proposed intiative was reapportionment of the legislature. We refused to enjoin the secretary of state from placing the measure on the ballot. The subject matter there was clearly a legislative matter.

ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916).

In O'Connell, supra, we intervened to require the secretary of state to file a proposed initiative on the ground that his refusal to do so exceeded his authority. Our holding in that case related solely to the scope of the secretary's authority prior to the circulation of petitions for signatures and not to the ground asserted by the secretary for his refusal to file the proposal, which was that a constitutional convention cannot be called or established by initiative. For our purposes in meeting the issues presented to us in O'Connell, we assumed the legislative nature of the subject matter.

The foregoing cases do not derogate from the numerous instances in which this court has, prior to enactment, determined the threshold question of whether a given proposal was 'legislative' in nature so as to be the proper subject of initiative. The courts of this state possess and have long exercised jurisdiction to adjudicate that question. E.g., Paget v. Logan, 78 Wash.Dec.2d 348, 474 P.2d 247 (1970); State ex rel. Close v. Meehan, 49 Wash.2d 426, 302 P.2d 194 (1956); State ex rel. Payne v. Spokane, 17 Wash.2d 22, 134 P.2d 950 (1943); State ex rel. Miller v. Hinkle, 156 Wash. 289, 286 P. 839 (1930). Accordingly, we proceed to determine whether repeal of the King County Charter is within the initiative power.

We are mindful of the fact that the initiative and referendum provisions of the King County Charter grant 'liberal and comprehensive legislative authority to the voters, excluding only initiative ordinances providing 'for the compensation or working conditions of county employees. The people in their legislative capacity are not, however, superior to the written and fixed Constitution. Nor is the individual who proceeds to initiate any legislation. His act in initiating a measure is but a voluntary one, and is permitted and defined, limited and circumscribed, by the Constitution and the laws passed in obedience to and compliance with the Constitution as amended.

" Paget v. Logan, Supra, 78 Wash.Div. at page 351, 474 P.2d at page 249. ² We are further cognizant of the basic limitation contained in Const. art. 11, § 4 (amendment 21) under which 'home rule' charters are authorized in this state: 'Any county may frame a 'Home Rule' charter for its own government subject to the Constitution and laws of this state * * *.' Thus, while the initiative powers under the King County Charter are quite broad, they are not unlimited, but must be consistent with the constitution and laws of the state. We early recognized this limitation in State ex rel. Berry v. Superior Court, 92 Wash. 16, 26, 159 P. 92, 94 (1916):

A fundamental limit on the initiative power inheres in its nature as a legislative function reserved to the people. In Washington, that power derives from our Const. art. 2, § 1 (amendment 7). ³ It is clear from the constitutional provision The question before us is whether repeal of a 'home rule' charter is a legislative act. In proceeding to answer this question, we first note that, once validly established, a 'home rule'...