Futurewise v. Reed

Decision Date07 September 2007
Docket NumberNo. 80430-3.,80430-3.
Citation161 Wn.2d 407,166 P.3d 708
CourtWashington Supreme Court
PartiesFUTUREWISE and Service Employees International Union Healthcare 775NW, Appellants, v. Sam REED, in his official capacity as Secretary of State of the State of Washington, Respondent.

Jeffrey Todd Even, James Kendrick Pharris, Office of the Attorney General, Olympia, WA, for Respondent.

Richard M. Stephens, Samuel A. Rodabough, Groen Stephens & Klinge LLP, Bellevue, for Amicus Curiae (Tim D. Eyman), (Leo J. (Jack) Fagan), (M.J. (Mike) Fagan), (Voters Want More Choices).


¶ 1 Futurewise and Service Employees International Union Healthcare 775NW seek to prohibit Secretary of State Sam Reed from placing Initiative 960 (I-960) on the November 2007 general election ballot. The King County Superior Court dismissed their action for injunctive and declaratory relief, and they appealed directly to this court. We affirm.


¶ 2 According to the ballot title's concise description, 1-960 "would require two-thirds legislative approval or voter approval for tax increases, legislative approval of fee increases, certain published information on tax-increasing bills, and advisory votes on taxes enacted without voter approval." Appellants' Opening Br. at 5. More specifically, the initiative

would require either a two-thirds vote in each house of the legislature or voter approval of all tax increases. New or increased fees would require prior legislative approval. An advisory vote would be required on any new or increased taxes enacted by the legislature without voter approval. The office of financial management would be required to publish cost information and information regarding legislators' voting records on bills imposing or increasing taxes or fees.

Id. at 5-6.

¶ 3 Appellants challenge only the initiative's voter and legislative approval requirements relating to tax increases. Under current law, the legislature may take action that "raises state revenue or requires revenue-neutral tax shifts" only if two-thirds of each house of the legislature approves, and then only if state expenditures in any fiscal year, including the new revenue, will not exceed statutory state expenditure limits. RCW 43.135.035(1). And if legislative action that "raises state revenue or requires revenue-neutral tax shifts" will result in expenditures in excess of the state expenditure limit, the action may not take effect until voted on by the people at a November general election. RCW 43.135.035(2)(a) The initiative would replace the phrase "raises state revenue or requires revenue-neutral tax shifts" with the phrase "raises taxes." Appellants' Opening Br., Ex. A at 7. "[R]aises taxes" means "any action or combination of actions by the legislature that increases state tax revenue deposited in any fund, budget, or account, regardless of whether the revenues are deposited into the general fund." Id. at 8. The initiative would thus make the act of "raising taxes" subject to the existing supermajority and voter approval provisions of RCW 43.135.035(1) and (2)(a). Also, the initiative would make all tax increases potentially subject to referendum by providing that, "[p]ursuant to the referendum power set forth in Article II, section 1(b) of the state Constitution, tax increases may be referred to the voters for their approval or rejection at an election." Id. at 7.

¶ 4 The initiative also would add a new section to chapter 43.135 RCW, stating that if legislative action raising taxes "is blocked from a public vote or is not referred to the people by a referendum petition found to be sufficient under RCW 29A.72.250, a measure for an advisory vote of the people is required and shall be placed on the next general election ballot under this act." Id. at 9. "[B]locked from a public vote" means "adding an emergency clause to a bill increasing taxes, bonding or contractually obligating taxes, or otherwise preventing a referendum on a bill increasing taxes." Id.1

¶ 5 The proponents of 1-960 gathered the necessary number of signatures and submitted them to the secretary of state. On May 17, 2007, appellants filed a complaint against the secretary in King County Superior Court, seeking to enjoin him from placing the initiative on the November 2007 general election ballot on the ground that the challenged provisions were beyond the scope of the initiative power. Holding that the initiative was not properly subject to preelection review, the court granted summary judgment in favor of the secretary and dismissed the complaint. Appellants appealed directly to this court, and the matter was set for accelerated review.


¶ 6 At issue is whether this court should review the validity of the challenged provisions of 1-960 prior to the November 2007 general election. Preelection review of initiative measures is highly disfavored. Coppernoll v. Reed, 155 Wash.2d 290, 297, 119 P.3d 318 (2005). The fundamental reason is that "the right of initiative is nearly as old as our constitution itself, deeply ingrained in our state's history, and widely revered as a powerful check and balance on the other branches of government." Id. at 296-97, 119 P.3d 318. Given the preeminence of the initiative right, preelection challenges to the substantive validity of initiatives are particularly disallowed. Id. at 297, 119 P.3d 318. Such review, if engaged in, would involve the court in rendering advisory opinions, would violate ripeness requirements, would undermine the policy of avoiding unnecessary constitutional questions, and would constitute unwarranted judicial meddling with the legislative process. Id. at 298, 119 P.3d 318. Thus, preelection substantive challenges are not justiciable. Id. at 300-01, 119 P.3d 318. Further, substantive preelection review could unduly infringe on the citizens' right to freely express their views to their elected representatives. Id. at 298, 119 P.3d 318.

¶ 7 We will therefore consider only two types of challenges to an initiative prior to an election: that the initiative does not meet the procedural requirements for placement on the ballot (a claim that appellants do not make here) and that the subject matter of the initiative is beyond the people's initiative power. Id. at 298-99, 119 P.3d 318.2 If an initiative otherwise meets procedural requirements, is legislative in nature, and its "fundamental and overriding purpose" is within the State's broad power to enact, it is not subject to preelection review. Id. at 302-03, 119 P.3d 318. That the law enacted by an initiative might be unconstitutional does not mean that it is beyond the power of the State to enact. Id. at 302-04, 119 P.3d 318. Therefore, a claim that an initiative would be unconstitutional if enacted is not subject to preelection review. Id.

¶ 8 Appellants challenge two aspects of 1-960. First, they argue that the initiative's referendum provisions exceed the people's legislative power because they would effectively alter the state constitution's referendum process without complying with the procedures for amending the constitution. As discussed, under the initiative, any legislative action that "raises taxes" and results in excess expenditures would be automatically subject to referendum. And any tax increase that is shielded from referendum by an emergency clause or by the failure to qualify a referendum for the ballot would require an "advisory" vote of the people. These provisions, appellants urge, would have the effect of altering the constitutional referendum petition process by automatically requiring a referendum on any tax increase that results in excess expenditures and by establishing a system of "advisory" referendums.

¶ 9 Second, appellants challenge the supermajority requirement of I-960. They contend that, except in specifically enumerated instances, legislative bills require only a simple majority vote to pass. See, e.g., CONST. art. II, § 22 (no bill shall become law except upon majority vote); CONST. art. II, § 24 (lottery may be established by 60 percent vote); CONST. art. II, § 41 (initiative may be amended within two years by two-thirds vote); CONST. art. III, § 12 (two-thirds vote required to override governor's veto); CONST. art. XXIII, § 1 (two-thirds vote required to propose constitutional amendment). Similar to their argument above, appellants contend that I-960 would have the unlawful "effect" of amending the constitution by establishing a supermajority requirement for tax increases not specified therein, thus placing the initiative beyond the people's legislative power.

¶ 10 Neither of appellants' challenges is subject to preelection review. I-960 does not purport to amend the constitution, whatever its practical "effect" may be. Appellants' argument is essentially that the initiative would be unconstitutional if enacted. We made clear in Coppernoll that we will not entertain such a claim prior to an election. The challengers there similarly argued that provisions of a proposed initiative were "unconstitutional and accordingly exceed[ed] the legislative power as a matter of law." Coppernoll, 155 Wash.2d at 302, 119 P.3d 318. Specifically, the challengers claimed that the initiative's limitations on noneconomic damages and contingency fees were beyond the initiative power because they invaded the jury's exclusive constitutional authority to determine damages and this court's exclusive constitutional authority to regulate the practice of law. But we rejected this argument, seeing it properly as not a subject matter challenge but a challenge to the constitutionality of the initiative. Id. at 303-04, 119 P.3d 318. We declined to adopt the notion that "any proposed legislation that could be potentially unconstitutional would operate as an...

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