Fritz v. Gorton, Nos. 42870

• Court: United States State Supreme Court of Washington
• Writing for the Court: FINLEY; HALE; WRIGHT; UTTER; HAMILTON; HUNTER; ROSELLINI; ROSELLINI; HUNTER
• Citation: 517 P.2d 911,83 Wn.2d 275
• Decision Date: 04 January 1974
• Docket Number: 42901,Nos. 42870
• Parties: William J. FRITZ, Individually and on behalf of all other persons similarly situated, and Washington Food Processors Council, a voluntary association, individually and on behalf of all other persons similarly situated, Appellants, v. Slade GORTON, Attorney General of the State of Washington, et al., Respondents. Warren SIMMONS, et al., Respondents, v. Slade GORTON, Attorney General of the State of Washington, et al., Appellants.

Page 275

83 Wn.2d 275 517 P.2d 911 William J. FRITZ, Individually and on behalf of all other
persons similarly situated, and Washington Food Processors
Council, a voluntary association, individually and on behalf
of all other persons similarly situated, Appellants,
v.
Slade GORTON, Attorney General of the State of Washington,
et al., Respondents.
Warren SIMMONS, et al., Respondents,
v.
Slade GORTON, Attorney General of the State of Washington,
et al., Appellants. Nos. 42870, 42901 Supreme Court of Washington, En Banc. Jan. 4, 1974.

Page 277

[517 P.2d 913] Davis, Wright, Todd, Riese & Jones, Richard A. Derham, Stephen K. Eugster, Seattle, for William J. Fritz and others.

Slade Gorton, Atty. Gen., Malachy R. Murphy, Deputy Atty. Gen., Rodney Carrier, Robert F. Hauth, Asst. Attys. Gen., Olympia, Riddell, Williams, Voorhees, Ivie & Bullitt, Stimson Bullitt, Seattle, for Slade Gorton, Public Disclosure Comm. and League of Women Voters.

MacDonald Hoague & Bayless, Kenneth A. MacDonald, William H. Neukom, Joel Benoliel, Seattle, for Warren Simmons and others.

Slade Gorton, Atty. Gen., Malachy R. Murphy, Deputy Atty. Gen., Thomas F. Carr, Robert F. Haugh, Asst. Attys. Gen., Olympia, Davis, Wright, Todd, Riese & Jones, Richard A. Derham, Stephen K. Eugster, Seattle, for Slade Gorton, Marianne Kraft Norton and Public Disclosure Comm.

FINLEY, Associate Justice.

In Supreme Court cause No. 42901, Simmons, et al., and in Supreme Court cause No. 42870, Fritz, et al., the plaintiffs assert that Initiative 276 (approved and enacted into law by a substantial majority of the electorate at the general election in November 1972) is unconstitutional on several grounds. The issues involved in both causes will be discussed, evaluated, and disposed of in this single, consolidated opinion.

[517 P.2d 914] In cause No. 42901, Simmons, et al., Warren Simmons, a port district commissioner of the Port of Olympia, Richard Failor, a director or member of the school board of the North Thurston School District, Joel Gould, a commissioner of public Utility District No. 1, and Marvin Jamerson, a commissioner of Thurston County Fire District No. 1, jointly filed a complaint in Thurston County Superior Court on January 27, 1973. Therein, the plaintiffs sought judicial declaratory relief under the Washington Declaratory Judgment Act, RCW ch. 7.24. They asked that Initiative 276, Wash.Laws of 1973, ch. 1, RCW ch. 42.17, in its entirety, but particularly section 24, RCW 42.17.240 (public disclosure by elected public officials of their financial affairs) be declared unconstitutional

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and void, and consequently not binding upon the plaintiffs. Marianne Kraft Norton sought intervention as a defendant ostensibly representing the people of the State of Washington and intervention was granted by the trial court. The Public Disclosure Commission created by Initiative 276 also sought and was granted intervention.

In Supreme Court cause No. 42870, Fritz, et al., William J. Fritz, a professional lobbyist (employed by the Washington Food Processors Council and others as a lobbyist) and the Washington Food Processors Council, a voluntary association, became plaintiffs individually and in behalf of all others similarly situated. Their joint complaint was filed in the Superior Court of Thurston County on December 26, 1972. The complaint was amended and broadened on January 2, 1973. Plaintiffs asked for and were granted injunctive relief by the trial court restraining and enjoining Pendente lite the application and enforcement of Initiative 276. In their complaint, the plaintiffs sought judicial-declaratory judgment relief comparable to that sought by plaintiffs in Simmons, et al.; namely, that Initiative 276 (Wash. Laws of 1973, ch. 1, codified as RCW ch. 42.17) in its entirety and particularly section 15, RCW 42.17.150, and section 17, RCW 42.17.170, and section 18, RCW 42.17.180 relative to lobbyists and employers of lobbyists--and expenditures relative to legislation--be declared unconstitutional and void. The League of Women Voters of Washington and the Public Disclosure Commission sought and were granted intervention.

Simmons, et al. and Fritz, et al. were combined and tried jointly with two other cases, Bare v. Gorton, et al., Supreme Court cause No. 42879, and Young Americans for Freedom, Inc. v. Gorton, et al., Supreme Court cause No. 42878, which cases also questioned Initiative 276 on constitutional grounds. Some facets of the cases are identical and common to all, others are different and unique as to each of the four cases. The combined cases were tried in Thurston County Superior Court, April 23 through May 2, 1973. The trial court rendered a memorandum opinion and subsequently

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entered findings of fact, conclusions of law, and judgment holding that Section 18, RCW 42.17.180, and Section 40(4), RCW 42.17.400(4), the citizens suit for damages or the so-called 'bounty hunter' provision of Initiative 276 were invalid. The trial court, however, sustained and upheld Initiative 276 against plaintiffs' attack on several other grounds of unconstitutionality. Appeals were timely filed in all four lawsuits. Because of state-wide public interest in this litigation, the Chief Justice advanced the date for submission and hearing argument in the Supreme Court on Simmons, et al. and Fritz, et al. A request of counsel in both cases for continuance to an early date in the January 1974 term to allow more time for preparation of briefs was denied by the Chief Justice. Simmons, et al. v. Fritz, et al. were treated as emergent matters and were heard by the Court sitting en banc on November 12. Bare, et al. v. Gorton, Supreme Court cause No. 42879 and Young Americans for Freedom v. Gorton, Supreme Court cause No. 42878 have been set and will be presented and argued during the next term of the Court on January 28, 1974.

[517 P.2d 915] Direct action, legislative or otherwise, by the people, limiting or mandating government or official action to conform more closely with the needs and desires of people seems to be about an ancient and traditional as the history of organized society and government. In fact, the concept and practice of direct legislation by the people antedates recorded history. Shafer, A Teutonic Institution Revived, 22 Yale L.J. 398 (1913).

In our modern society many functions of an earlier, New England town meeting variety of pure democracy have been relinquished to the various modern institutions of our representative form of government. It is often, forgotten,--but it should be remembered as axiomatic--that our representative democracy exists and operates on the basis of its delegated authority and power derived from the people or the electorate of the states and the union. Sovereignty of the populace and the electorate relative to representative or organized government is dramatically evidence in the

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phrase 'We the people . . . do ordain,' contained in the preambles of the constitutions of the United States and the State of Washington. In this regard, it should be noted that where there is public dissatisfaction and/or disenchantment with the functioning or responsiveness of government institutions, to the social needs and desires of the electorate, power unquestionably has been reserved in the people or the electorate to alter the form and substance of the social compact by constitutional amendment. See generally, A. DeTocqueville, Democracy in America (J. Mayer ed. 1971).

With this as part of our background or heritage relative to representative democracy and government, it is not surprising that in the area of political science and practice politics the concepts of initiative, referendum, and judicial recall became important tenants of the old 'populist' movement. It was in the late 19th and the early 20th century that interest was sparked and an active and effective movement developed centering in the newer western states respecting direct legislative action by the electorate. Perhaps this was partly an outgrowth of the 'populist' political movement and was partly due to then current popular dissatisfactions with an apparent lack of responsiveness of government to the social needs and desires felt by the people. The movement led to the adoption of state unconstitutional amendments providing for direct popular action in the nature of initiative, referendum, and judicial recall processes. The movement and developments in this regard were met with no small degree of vehement opposition by the writers, publicists, and pamphleteers of the day. See e.g., Littleton, Mob Rule and the Canonized Majority, 7 Const.Rev. 86 (1923). The more conservative elements of the legal profession feared the usurpation of constitutional safeguards and warned '(a) government controlled by hysteria and hasty impulse must inevitably fall.' Campbell, The Initiative and Referendum, 10 Mich.L.Rev. 427, 436 (1912). Perhaps, on occasion, the electorate, in thinking and in action, has taken positions via the initiative or referendum

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well in advance of, and perhaps more venturesome, than positions taken by state legislators. However, experience, patience, and maturity of judgment on the part of observers would seem to support a conclusion that the electorate generally has exercised its collective-coordinate legislative judgment and the powers of initiative and referendum with acumen, and commonsense as well as with constructive social purpose equal to that of state legislatures.

In 1898, South Dakota, followed shortly by Oregon in 1902, became the first state to adopt by constitutional amendment the initiative procedure or machinery. By 1918, 22 states including Washington had adopted similar constitutional provisions. Potter, The 'Tools of Democracy,' 24 Case & Com. 610 (1918). It seems reasonably convincing that these developments were an outgrowth of popular discontent with the unresponsiveness of government in...