Kreidler v. Eikenberry
| Decision Date | 06 January 1989 |
| Docket Number | Nos. 55238-0,55398-0,s. 55238-0 |
| Citation | 766 P.2d 438,111 Wn.2d 828 |
| Parties | Senator Mike KREIDLER; Representative Lorraine Hine; Representative Clyde Ballard; Representative Sally Walker; Yes on 97B Committee; Gloria N. Miller; and others, Petitioners, v. Kenneth O. EIKENBERRY, Attorney General for the State of Washington; Ralph Munro, Secretary of State for the State of Washington; Honorable Carol Fuller, Judge of the Superior Court for Thurston County; Citizens Toxic Cleanup Campaign, Inc.; and Nancy Pearson, Respondents. In the Matter of the BALLOT TITLE FOR ALTERNATIVE MEASURE NO. 97B. |
| Court | Washington Supreme Court |
Edwards & Barbieri, Malcolm L. Edwards, Catherine Wright Smith, Charles Wiggins, Seattle, for petitioners.
Kenneth Eikenberry, Atty. Gen., Edward B. Mackie, Asst. Atty. Gen., Olympia, for respondent state.
Patrick D. Sutherland, Thurston County Prosecutor, Jeffrey L. Watson, Deputy County Prosecutor, Olympia, for respondent Fuller.
Peter T. Jenkins, Bricklin & Gendler, David A. Bricklin, Theodore P. Hunter, Riddell, Williams, Bullitt & Walkinshaw, Stimson Bullitt, Rodney L. Brown, Jr., Seattle, for respondent Citizens' Toxic Cleanup Campaign, et al.
This case consolidates two actions: first, a direct appeal from a superior court order denying intervention in an action challenging the ballot title for Alternative Measure 97B; and second, an original action challenging the Superior Court's jurisdiction to hear ballot title challenges of legislatively enacted measures. Petitioners' primary objective is to obtain review on the merits of the Superior Court's ballot title decision. They contend that this court may reach the merits either by hearing the appeal of the order denying intervention or by hearing the original action challenging the trial court's subject matter jurisdiction. Respondents seek attorney fees for the appeal of the Superior Court's decision. We hold that the Superior Court did not err by denying intervention, that it has jurisdiction, that petitioners are not entitled to review on the merits, and that respondents are not entitled to attorney fees.
In August 1987, Citizens Toxic Cleanup Campaign, Inc. (Citizens) filed Initiative 97 to establish a statewide hazardous waste cleanup program, also known as the state "Superfund." The ballot title for the initiative reads:
Shall a hazardous waste cleanup program, partially funded by a 7/10 of 1% tax on hazardous substances, be enacted?
In October 1987, the Legislature enacted a different hazardous waste cleanup program. 1 In February 1988, the Secretary of State certified the petition signatures for Initiative 97. The Legislature rejected the initiative and directed that its own enactment be presented to the voters as Alternative 97B on the November 1988 ballot. 2
In May 1988, the Attorney General formulated the following ballot title for Alternative Measure 97B:
Shall the legislatively enacted hazardous waste cleanup program, which includes an 8/10 of 1% tax on hazardous substances, be retained?
Citizens appealed this ballot title to the Superior Court for Thurston County, arguing that the proposed title did not identify the essential differences between Initiative 97 and Alternative Measure 97B. Citizens proposed that the title state that the tax under 97B does not apply to exported petroleum products. Citizens served notice of its appeal on the Secretary of State, the Attorney General, and, as the proponents of 97B, the Clerk of the House of Representatives and the Secretary of the Senate. The chairman of the Yes 97B Committee (Committee) was aware of the ballot title challenge, but only the Attorney General appeared to argue in support of his ballot title.
Expressing dissatisfaction with the Attorney General's ballot title, the Superior Court Judge directed the Attorney General and Citizens to try to agree to a title for her approval. On June 13, 1988, she agreed to the following title submitted by the parties:
Shall the legislature's cleanup program, with a 0.8% hazardous substance tax raising less money, with less coverage of petroleum, be retained?
On June 20, 1988, the Committee and several legislators who drafted and voted for 97B moved to intervene and requested that the court reconsider its decision. The Attorney General also moved for reconsideration. On July 19, 1988, the Superior Court denied both the motion to intervene and the Attorney General's motion to reconsider.
The legislators and Committee appealed the denial of their motion to intervene directly to this court. They also filed an original petition in this court against the Attorney General, the Secretary of State, and the Superior Court Judge, challenging the Superior Court's jurisdiction and seeking to overturn the court's approved title. This court consolidated the actions.
This case presents four main issues:
1. Did the Superior Court err by denying the petitioners' motion to intervene?
2. Can this court review the Superior Court's ballot title decision by direct appeal, discretionary review, or by using our inherent powers of review?
3. Can petitioners bring an original jurisdiction action alleging the Superior Court's lack of subject matter jurisdiction?
4. Are respondents entitled to attorney fees in this case?
Appellant legislators and Committee contend that the Superior Court erred by denying their motion to intervene as a matter of right under CR 24(a)(2). That rule reads as follows:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
CR 24(a). The Superior Court held that the appellants' motion was untimely and that the Attorney General adequately represented their interests.
Abuse of discretion is the proper standard of review for a trial court's determination of timeliness. United States v. Oregon, 745 F.2d 550, 552 (9th Cir.1984). A reviewing court will find abuse " 'only when no reasonable person would take the position adopted by the trial court.' " Board of Regents v. Seattle, 108 Wash.2d 545, 557, 741 P.2d 11 (1987) (quoting Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 584, 599 P.2d 1289 (1979)).
Timeliness is a critical requirement of CR 24(a). Martin v. Pickering, 85 Wash.2d 241, 243, 533 P.2d 380 (1975). Where a person seeks to intervene after judgment the court should allow intervention only upon a strong showing after considering all circumstances, including prior notice, prejudice to the other parties, and reasons for and length of the delay. Martin, at 243-44, 533 P.2d 380; Rains v. Lewis, 20 Wash.App. 117, 125, 579 P.2d 980 (1978).
Factors favoring intervention include the Legislators' interests as drafters and proponents of Alternative Measure 97B and the Committee's interest as the group formed to campaign for its passage. In addition, by joining their motion to intervene with the Attorney General's motion for reconsideration, appellants reduced prejudice to the existing parties and minimized delay.
A factor supporting the trial court's ruling is the statute governing ballot titles which emphasizes the importance of timeliness. It allows the Attorney General only 7 days to prepare and file a ballot title, challengers only 5 days to appeal the title, and the superior court only 5 days to render a decision. RCW 29.79.040-.060. Timing is clearly important. There is a strong interest in the finality of ballot title decisions.
Petitioners had ample opportunity to intervene before the Superior Court made its decision, but they failed to do so. They had notice, were aware of the suit, and no extraordinary circumstances justify delay. Although they were satisfied with the Attorney General's ballot title, they must have realized that the court might change it. The Attorney General argued vigorously in favor of his ballot title even though, technically, he did not represent the petitioners' interests.
Under the abuse of discretion standard, the Superior Court Judge did not err in denying appellants' motion to intervene. The court's decision was both reasonable and based on tenable grounds. It cannot be said that no reasonable person would have taken the position of the trial court.
Appellants next contend that this court can review the Superior Court's decision on the merits either by direct review or by discretionary review. We disagree. Even if we assume the appellants were a party to the ballot title decision and had standing to appeal, the statute, nonetheless, precludes both direct and discretionary review. Even if it did not, the circumstances of this case do not warrant reaching the merits by using our inherent power of review.
RCW 29.79.060 states that the superior court's decision on review of the Attorney General's ballot title "shall be final." We have not previously addressed whether the statutory language precludes appellate review. However, a similar issue was decided in Hatfield v. Greco, 87 Wash.2d 780, 557 P.2d 340 (1976).
Hatfield involved an action under RCW 29.04.030 to challenge the right of the respondent to be a candidate for county commissioner. The statute provides that any challenge to a candidate "shall be heard and finally disposed of by the [superior] court" within 5 days after the challenge was filed. This court interpreted this language to mean that no appeal is available. Such a construction, the court concluded, was consistent with the purpose of the statute to obtain a speedy determination of election disputes and with the rule that procedures prescribed for purely...
To continue reading
Request your trial
-
Saldin Securities, Inc. v. Snohomish County, 63940-0
... ... Kreidler v. Eikenberry, 111 Wash.2d 828, 837, 766 P.2d 438 (1989); Pierce County Sheriff v. Civil Serv. Comm'n, 98 Wash.2d 690, 693-94, 658 P.2d 648 (1983); ... ...
-
Detention of Henrickson v. State
... ... Kreidler v. Eikenberry, 111 Wash.2d 828, 837, 766 P.2d 438 (1989). But here, we granted the State's petition for discretionary review without invoking our ... ...
-
Ames v. Pierce Cnty.
... ... No. 304 v. Skagit County Pub. Hosp. Dist. No. 1, 177 Wash.2d 718, 72223, 305 P.3d 1079 (2013) (first alteration in original) (quoting Kreidler v. Eikenberry, 111 Wash.2d 828, 838, 766 P.2d 438 (1989) ). The statutory writ of prohibition may be issued to arrest the improper exercise of ... ...
-
In re Fortney
... ... ballot synopsis decisions "not reviewable by this court." In re Recall of Zufelt , 112 Wash.2d 906, 910, 774 P.2d 1223 (1989) (citing Kreidler v. Eikenberry , 111 Wash.2d 828, 834, 766 P.2d 438 (1989) ). Although we have previously stated that this court "may, in unusual circumstances, ... ...
-
Table of Cases
...P.2d 871 (1992): 12.9(3) Kreidler v. Cascade Nat'l Ins. Co., 179 Wn. App. 851, 321 P.3d 281 (2014): 3.3(4)(b)(iv) Kreidler v. Eikenberry, 111 Wn.2d 828, 766 P.2d 438 (1989): 4.2(4), 4.4(1), 5.6(2), 22.2(1) Kronenberg, In re Disciplinary Proceeding Against, 155 Wn.2d 184, 117 P.3d 1134 (2005......
-
§ 4.4 Superior Court Decisions Subject Only to Discretionary Review
...appeal or discretionary review from the superior court's decision regarding ballot title challenges. But in Kreidler v. Eikenberry, 111 Wn.2d 828, 766 P.2d 438 (1989), the Supreme Court held that it would in certain circumstances exercise its inherent power to review a ballot RAP 2.3 allows......
-
§24.6 Analysis
...denying appellants' motion to intervene. The court's decision was both reasonable and based on tenable grounds. Kreidler v. Eikenberry, 111 Wn.2d 828, 832-33, 766 P.2d 438 (1989) (citations When timeliness is determined in the exercise of the trial court's discretion, appellate review is li......
-
§ 22.2 Original Actions Against State Officers
...procedure to exercise its appellate jurisdiction since promulgation of the Rules of Appellate Procedure (RAP). Kreidler v. Eikenberry, 111 Wn.2d 828, 840, 766 P.2d 438 (1989). RAP 2.1(b) provides that the procedure for seeking review of trial court decisions established by the Rules of Appe......