Philadelphia II v. Gregoire
| Decision Date | 29 February 1996 |
| Docket Number | No. 62663-4,62663-4 |
| Court | Washington Supreme Court |
| Parties | PHILADELPHIA II, a nonprofit corporation; Robert D. Adkins, an individual; Mike Gravel; an individual, Petitioners, v. Christine O. GREGOIRE, Attorney General of the State of Washington, Appellant. |
Mr. Mike Gravel, Philadelphia II, Monterey, CA, Pro Se.
Michael J. Underwood, Tacoma, for Appellants.
Robert Adkins, Philadelphia II, Tacoma, Pro Se.
Christine O. Gregoire, Attorney General, Jeffrey T. Even, Asst., James K. Pharris, Asst., Olympia, for Respondent.
*
Petitioners appeal a decision of a superior court dismissing their petition to obtain a ballot title from the Attorney General for Initiative 641. The superior court dismissed the petition because it determined that the initiative did not fall within the scope of the legislative authority of the state. Although we conclude that the Attorney General should have prepared the ballot title, we also hold that the initiative goes beyond the scope of power reserved to the people in our state constitution and thus should not appear on the ballot. We therefore affirm the superior court.
Petitioner Philadelphia II is a nonprofit corporation set up in order to put Initiative 641, also named Philadelphia II, on the ballot in Washington State. Petitioners also include Robert Adkins, a Washington State voter, and Mike Gravel, principal architect of the Philadelphia II initiative.
The Philadelphia II initiative seeks to establish in the United States "direct democracy" by means of a federal, nationwide initiative process to complement the current congressional system, and ultimately to call a world meeting where representatives from participating countries will discuss global issues. The sponsors of Philadelphia II believe that if 51 percent of the nation's eligible voters choose to adopt Philadelphia II, it will automatically become federal law. The sponsors hope to achieve this goal by placing the Philadelphia II measure before voters in individual states, thereby gaining the necessary 51 percent of votes if successful.
The initiative has 12 sections. The substantive sections declare that direct democracy is "hereby initiated ... through a national state-by-state initiative process whereby this act is enacted as state law by the approval of state voters." Washington State Initiative 641, Clerk's Papers at 12. Philadelphia II also creates the United States Electoral Administration (USEA) to facilitate this process. Among the USEA's functions are to place the Philadelphia II initiative on other state ballots or conduct its own elections if no means exist to place an initiative on a state's ballot, to create a legislative drafting service to assist citizens in the preparation of their initiatives, to defend the right of direct democracy against legal challenges, and to develop a voter registration system. The initiative also appropriates state money as a loan to the USEA, to be repaid from federal funds when Philadelphia II becomes federal law. The USEA is subject to Washington state law and federal law where applicable.
Philadelphia II sets forth new procedures and regulations for initiatives on local, state, and national levels, subject to compliance with a state's constitution. It also mandates that the USEA provide, at public expense, information about citizen initiatives and sets regulations regarding fundraising and disclosure by sponsors and opponents of initiatives.
Other sections of the initiative deal with the world meeting to be held when a "critical mass" of one billion people worldwide have expressed their willingness through democratic initiative or referendum to hold the meeting. Philadelphia II sets forth methods to determine the time and place of the meeting, as well as complicated procedures to determine the number of each nation's delegates. Any declarations ensuing from the meeting will not be binding on the participating nations.
The remaining sections are primarily procedural, providing that all governmental jurisdictions shall cooperate to the greatest extent possible and that in the event a section is deemed unconstitutional, the other sections remain in force. If Philadelphia II has not become law within ten years of its passage in Washington, it shall be null and void. If, on the other hand, it becomes federal law, it shall be deleted from the state codes and added to the federal code.
Petitioners filed the initiative with the Secretary of State pursuant to RCW 29.79.010. The Secretary of State then transmitted the proposed initiative to the Office of the Attorney General for preparation of a ballot title and explanatory statement. However, the Attorney General refused to prepare the title or statement, explaining in a letter to the Secretary of State that "the contents of the measure are beyond the legislative power reserved to the people under the Washington State Constitution." Letter of 1/26/95 from Pharris to Secretary of State, Clerk's Papers at 9. Specifically, the Attorney General determined that much of the initiative was a declaration of philosophy and thus not legislation, that the USEA would not be a state agency, and that, in general, the initiative sought to exercise legislative power outside the borders of Washington State.
Petitioners filed suit against the Attorney General in superior court, seeking, inter alia, a writ of mandamus ordering the Attorney General to prepare a ballot title and explanation. The superior court dismissed the action, holding that the initiative was not within the scope of the legislative authority of Washington State. We granted review of the order.
As a preliminary matter, we address whether the appeal is moot. Although neither party has raised the issue, the initial relief requested by Petitioners can no longer be granted since the time for filing for the November 1995 election has already passed. However, we may decide to review a case, even though moot, if it involves a matter of "substantial public interest." Westerman v. Cary, 125 Wash.2d 277, 286, 885 P.2d 827, 892 P.2d 1067 (1994) (quoting Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972)). This analysis comprises three factors: "(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur." Id. (quoting Hart v. Department of Social & Health Servs., 111 Wash.2d 445, 448, 759 P.2d 1206 (1988)). In addition, we consider the likelihood that the issue will never be decided by a court due to the short-lived nature of the case. Id. at 286-87, 892 P.2d 1067.
We determine that this case involves an issue of "substantial public interest" and reach the merits. Each of the three factors weighs in favor of review. The issue is of a public nature, it would be desirable to provide guidance to the Attorney General for future actions, and the issue is likely to recur. Not only are these factors present, but review will also avoid a situation in which the Attorney General could prevent initiatives from ever appearing on the ballot simply by refusing to prepare the ballot title, knowing that the case would be moot by the time it was reviewed by this court. We find these reasons adequate to justify review of the substantive issues.
Turning to an analysis of the merits of the case, we first consider whether the Attorney General had the authority to refuse to prepare a ballot title and summary for the Philadelphia II initiative.
Although we have not previously addressed the precise issue before us, statutory language and analogous case law compel the conclusion that the Attorney General does not have discretion to refuse to prepare a ballot title due to the initiative being beyond the scope of Washington's legislative power.
The duties of the Attorney General regarding initiative ballot titles and summaries are set forth in RCW 29.79.040:
Within seven calendar days after the receipt of an initiative or referendum measure the attorney general shall formulate and transmit to the secretary of state the concise statement [posed as a question and not to exceed twenty words], bearing the serial number of the measure and a summary of the measure, not to exceed seventy-five words, to follow the statement.
RCW 29.79.040 (emphasis added).
Use of the term "shall" by the Legislature indicates that the Attorney General must prepare a ballot title and summary regardless of the content of the initiative. The statutory term "shall" is presumptively imperative unless a contrary legislative intent is apparent. State v. Krall, 125 Wash.2d 146, 148, 881 P.2d 1040 (1994) (quoting Erection Co. v. Department of Labor & Indus., 121 Wash.2d 513, 518, 852 P.2d 288 (1993)). No contrary legislative intent has been cited by the Attorney General. Furthermore, this presumption is strengthened where, as here, other sections of the same statute contain the word "may." Krall, 125 Wash.2d at 148, 881 P.2d 1040; compare RCW 29.79.040 (Attorney General "shall" prepare title) with RCW 29.79.150 (). There is simply no indication that the Legislature intended the Attorney General to review the petition for its substance.
Our determination that the Attorney General lacks discretion in preparing a ballot title and summary is consistent with prior Washington cases. In Ballasiotes v. Gardner, we held that a county prosecutor overstepped the bounds of his authority by refusing to prepare a ballot title for a referendum because he believed the subject matter to be exempt from the county charter authorizing referendums. 97 Wash.2d 191, 195, 642 P.2d 397 (1982). As here, the authorizing statute used the term "shall" in describing the prosecutor's duties to prepare a ballot title. Id. at 195, 642 P.2d...
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