Lee v. State

Decision Date26 May 2016
Docket NumberNo. 92708–1,92708–1
Citation185 Wash.2d 608,374 P.3d 157
CourtWashington Supreme Court
PartiesTony Lee, an individual taxpayer; Angela Bartels, an individual taxpayer; David Frockt, an individual taxpayer and Washington State senator ; Reuven Carlyle, an individual taxpayer and Washington State representative; Eden Mack, an individual taxpayer; Gerald Reilly, an individual taxpayer; Paul Bell, an individual taxpayer; and The League of Women Voters of Washington, Respondents, v. The State of Washington, Appellant, and Tim Eyman; Leo J. Fagan; and M.J. Fagan, Appellants.

Richard M. Stephens, Stephens & Klinge LLP, 10900 Ne 8th St., Ste. 1325, Bellevue, WA, 98004–4748, Callie Anne Castillo, Rebecca R. Glasgow, Attorney General's Office, Solicitor General Division Attorney General, Attorney at Law, 1125 Washington Street, P.O. Box 40100, Olympia, WA, 98504–0100, for Appellants.

Paul J. Lawrence, Kymberly Kathryn Evanson, Sarah Stewart Washburn, Pacifica Law Group LLP, 1191 2nd Ave., Ste. 2000, Seattle, WA, 98101–3404, for Respondents.

Erick Dean Reitz, Attorney at Law, 1818 E Madison St., Apt. 509, Seattle, WA, 98122–3186, for Amicus Curiae on behalf of Association of Washington School Principals.


Appellants1 (hereinafter State or sponsors) seek reversal of a King County Superior Court order declaring Initiative 1366 (I–1366) unconstitutional. At the heart of this case lies the fact that I–1366, if enacted, would “result[ ] in either a one-time reduction in the sales tax or [the proposal of a constitutional amendment].” Corr. Opening Br. of Appellants at 27 (italics added). Based on the plain language of the initiative, we hold that I–1366 requires the legislature to choose between two operative provisions. This does not constitute valid contingent legislation. Instead, this is the kind of logrolling of unrelated measures article II, section 19 of the Washington State Constitution was adopted to prevent. As the trial judge aptly stated, “It is impossible to determine how many people voted for this initiative because they desired adoption of the constitutional amendment at its heart and how many voted for it because they desired the short-term relief of the immediate reduction in the sales tax.” Clerk's Papers (CP) at 434.

We affirm the trial court and hold that I–1366 violates the single-subject rule of article II, section 19, and that it is void in its entirety.


¶ 3 I–1366 is before the court for the second time; previously, it was the subject of this court's decision in Huff v. Wyman , 184 Wash.2d 643, 649, 361 P.3d 727 (2015). In Huff, the plaintiffs sought injunctive and declaratory relief in order to keep I–1366 off the ballot. We held that plaintiffs there did not make the clear showing necessary to grant injunctive relief. Id. at 654–55, 361 P.3d 727. Secretary of State Kim Wyman placed I–1366 on the November 2015 ballot, and it was approved in the statewide election.

¶ 3 The official ballot title stated:

Initiative Measure No. 1366 concerns state taxes and fees.
This measure would decrease the sales tax rate unless the legislature refers to voters a constitutional amendment requiring two-thirds legislative approval or voter approval to raise taxes, and legislative approval for fee increases.

CP at 36. The explanatory statement summarizes:

This measure would cut the state retail sales tax from 6.5% to 5.5% on April 15, 2016, unless the legislature first proposes a specific amendment to the state constitution. The proposed amendment must require that for any tax increase, either the voters approve the increase or two-thirds of the members of each house of the legislature approve the increase. It must also require the legislature to set the amount of any fee increases.

Id. at 37.

¶ 4 Plaintiffs (now respondents or opponents)2 filed suit in King County Superior Court, seeking declaratory relief that I–1366 was unconstitutional in its entirety. The superior court judge found for the plaintiffs, declaring I–1366 unconstitutional because it violates the single-subject rule of article II, section 19 ; the constitutional amendment process outlined in article XXIII, section 1 of the Washington Constitution ; and abridges the legislature's plenary power. The State and initiative sponsors sought direct, expedited review in this court, and we granted review. The issues raised by appellants include whether (1) respondents have standing, (2) this case is justiciable, and (3) I–1366 violates article II, section 19, article XXIII, section 1, or article II, section 1 of the Washington State Constitution.

Standard of Review

¶ 5 Summary judgment orders are reviewed de novo, and this court engages in the same inquiry as the trial court. Amalg. Transit Union Local 587 v. State , 142 Wash.2d 183, 206, 11 P.3d 762 (2000). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Construction of a statute is a question of law that we review de novo. Amalg. , 142 Wash.2d at 206, 11 P.3d 762.


¶ 6 Opponents claim standing as taxpayers, individuals, and legislators. The State agrees that opponents have standing as taxpayers, but dispute individual and legislator standing. Sponsors contend that opponents do not have standing in any capacity.

¶ 7 This court has previously recognized taxpayer standing to challenge governmental acts. See, e.g., State ex rel. Boyles v. Whatcom County Superior Court , 103 Wash.2d 610, 614, 694 P.2d 27 (1985) (This court recognizes litigant standing to challenge governmental acts on the basis of status as a taxpayer.”); Greater Harbor 2000 v. City of Seattle , 132 Wash.2d 267, 281, 937 P.2d 1082 (1997) (“The recognition of taxpayer standing has been given freely in the interest of providing a judicial forum for citizens to contest the legality of official acts of their government.”). However, “taxpayer disagreement with a discretionary governmental act is not enough to convey standing.” Huff , 184 Wash.2d at 649, 361 P.3d 727. In order to allege standing, the challenger must be a taxpayer, request the attorney general take action, and have the request denied before commencing suit. Boyles , 103 Wash.2d at 614, 694 P.2d 27.

¶ 8 Here, opponents allege taxpayer status, challenge an adopted official act, and requested the attorney general take action, which was denied. Just as this was enough to convey standing to identical parties in Huff,3 so too does it convey standing now. 184 Wash.2d at 649–50, 361 P.3d 727.

Sponsors attempt to distinguish Huff, arguing that the issue here is the legislature's purely discretionary decision on how to respond to the initiative. This argument misses the mark; opponents are not challenging the potential discretionary acts the legislature may take in response to I–1366. Instead, they are challenging the constitutionality of an adopted official act.

¶ 10 Next, sponsors argue that granting opponents taxpayer standing will “inject the court in on-going legislative processes.” Corr. Opening Br. of Appellants at 15 (formatting omitted). We disagree. Opponents make a facial challenge to the constitutionality of a properly challenged initiative, not its unconstitutionality in application, or how the legislature should or may respond to it. It is worth noting that review of an article II, section 19 challenge to the constitutionality of a bill or initiative is routinely granted. See, e.g., Wash. Ass'n for Substance Abuse & Violence Prevention v. State , 174 Wash.2d 642, 653–54, 278 P.3d 632 (2012) ; City of Burien v. Kiga , 144 Wash.2d 819, 824, 31 P.3d 659 (2001) ; Amalg. , 142 Wash.2d at 206, 11 P.3d 762 ; State ex rel. Wash. Toll Bridge Auth. v. Yelle , 32 Wash.2d 13, 23, 200 P.2d 467 (1948). The opponents have met the requirements of taxpayer standing, and we need not reach the issues of individual and legislator standing.


¶ 11 Justiciability is a threshold requirement that must be satisfied before proceeding to a litigant's claims. Huff , 184 Wash.2d at 650, 361 P.3d 727. The focus is “whether the question sought to be adjudicated is appropriate for the court to address.” Id. This court has jurisdiction over constitutional challenges to statutes. Const. art. IV, § 4 ; RCW 2.04.010. The State agrees with opponents that the case is justiciable, “especially in light of the issues of substantial public interest” and the “public officials' need for immediate resolution.” Appellant State of Wash.'s Corr. Opening Br. at 34. Sponsors, however, maintain it is not.

¶ 12 Under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, and in the absence of issues of “broad, overriding, public import,” in order for a court to hear a case, there must be a justiciable controversy

(1) which is an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.

Diversified Indus. Dev. Corp. v. Ripley , 82 Wash.2d 811, 815, 514 P.2d 137 (1973).

¶ 13 The first prong of this test concerns ripeness and mootness. An actual, present, and existing dispute is presented here. The initiative provides for an immediate reduction in the sales tax rate unless the legislature proposes a constitutional amendment. Opponents' claims of unconstitutionality do not require more time or legislative action to become ripe. Either I–1366 contains two subjects or it does not; the passage of time will not make this any clearer. See, e.g., Coppernoll v. Reed , 155 Wash.2d 290, 299, 119 P.3d 318 (2005) (holding that preelection subject matter challenges are ripe because postelection events would not further sharpen the issue).


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