State ex rel. O'Connell v. Kramer, 40075
| Decision Date | 23 January 1968 |
| Docket Number | No. 40075,40075 |
| Citation | 436 P.2d 786,73 Wn.2d 85 |
| Parties | The STATE of Washington ex rel. John J. O'CONNELL, Attorney General, Relator, v. A. Ludlow KRAMER, Secretary of State of the State of Washington, Respondent. |
| Court | Washington Supreme Court |
John J. O'Connell, Atty. Gen., Harry Hartinger, Asst. Atty. Gen., Olympia, for petitioner.
Stanley W. Worswick, Tacoma, Camden M. Hall, Seattle, for respondent.
This is an original application for a writ of mandamus. The Attorney General, as relator, petitions the court for a writ of mandamus requiring the respondent, the Secretary of State, to file and give a serial number to and forthwith transmit to the Attorney General a numbered copy of a certain proposed initiative measure annexed to the petition as exhibit A. Relator shows in the petition, Inter alia, that the proposed initiative measure, if it becomes law, will call for and establish a state constitutional convention, provide for election of delegates thereto, and appropriate from the public treasury the sum of $975,000 for the expenses thereof. The prospective initiative measure, when enacted, will impose a duty on the convention to prepare a revised constitution of the State of Washington for submission to the people at the general election of November 3, 1970.
The petition shows that the Secretary of State, acting officially by letter of January 5, 1968, formally rejected the proposed initiative measure for filing, and declined thereby to give it a serial number and transmit one numbered copy thereof to the Attorney General.
In rejecting the proposed initiative measure, the Secretary of State gave as reasons therefor that Art. 23, § 2 of the state constitution provides the exclusive method for calling a constitutional convention; that a constitutional convention cannot lawfully be called or established by an initiative measure; that such an initiative measure, if enacted by the people, would be null and void; and that public funds ought not be expended by the office of the Secretary of State in processing a proposed initiative which is a nullity.
The parties hereto, pursuant to Rule on Appeal 58(b), RCW Vol. 0, stipulated to and agreed upon a statement of facts, thus obviating referral of the cause to the Superior Court for Thurston County.
Despite the contention of the parties as set forth in the petition, stipulated facts and argument, we see before us only a very narrow issue, for the sole controversy of a justiciable nature inhering in this cause is whether the Secretary of State had discretion to refuse to file, give a serial number to and transmit a numbered copy of the proposed initiative measure to the Attorney General as prescribed by RCW 29.79.020 and RCW 29.79.030. Ultimate questions as to the validity of the proposed initiative measure are not before us and should not come before us unless and until the people have enacted the measure into law, for the Supreme Court does not render advisory opinions. Even in National Elec. Contractors Ass'n etc. v. Seattle School Dist. No. 1, 66 Wash.2d 14, 400 P.2d 778 (1965), and Deaconess Hosp. v. Washington State Highway Comm'n, 66 Wash.2d 378, 403 P.2d 54 (1965), where this court reviewed the first case after an intervening mootness and in the latter where a long and expensive trial had occurred in a county which some of the judges felt was without jurisdiction, the court asserted again that it does not render advisory opinions or decide purely theoretical controversies. There being before us no statute, or initiative measure enacted by the people, the proposed measure presents no justiciable controversy and we, therefore, do not pass upon its validity.
Should the constitutionality of the proposed initiative be later challenged, and should it then be determined to be unconstitutional, unquestionably there would be those who would criticize the court for not having made that decision at this time, before signatures were secured and an election held. We wish to forestall such criticism, if that be possible, by making it clear that we cannot pass on the constitutionality of proposed legislation, whether by bills introduced in the House or Senate, or measures proposed as initiatives, until the legislative process is complete and the bill or measure has been enacted into law. Then, and then only, can the constitutional issue now urged upon us be properly considered.
The Secretary of State can no more thwart the legislative processes of the initiative by a claim of unconstitutionality than could the Speaker of the House, or the Lieutenant Governor as the presiding officer of the Senate refuse to have the vote taken on a bill because he did not believe it to be constitutional.
What, then, is the precise question now before us? RCW 29.79.020 requires that 'Initiative measures proposed to be submitted to the people must be filed with the secretary of state within ten months prior to the election at which they are to be submitted' to the people.
Upon receiving the proposed initiative measure for filing,
The secretary of state shall give a serial number to each initiative or referendum measure, using a separate series for initiative and referendum measures, and forthwith transmit one copy of the measure proposed bearing its serial number to the attorney general. Thereafter a measure shall be known and designated on all petitions, ballots and proceedings as 'Initiative Measure No. .....' or 'Referendum Measure No. .....' RCW 29.79.030.
The Attorney General is then required by RCW 29.79.040 to prepare a dispassionate statement of the purpose of the measure and an identifying caption for it.
A reading of the foregoing statutes in pari materia with Art. 2, § 1 (amendment 7), of the state constitution, which also requires that proposed initiative measures be filed with the Secretary of State, leads us to the conclusion that, in enacting RCW 29.79.010, 29.79.020 and 29.79.030, the legislature, with respect to filing, numbering and transmitting to the Attorney General proposed initiative measures, required the performance of a series of official acts, largely mechanical in nature, and imposed upon the Secretary of State ministerial duties only. If the documents tendered that officer for filing meet the requirements as to form and style prescribed by RCW 29.79.010--and there is no contention here that the proffered papers do not--then, among the ministerial duties imposed, the Secretary of State is required to file the proposed...
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CLEAN v. State
...process, I will not consider CLEAN's other claims that the act is substantively unconstitutional. (See State ex rel. O'Connell v. Kramer, 73 Wash.2d 85, 86-87, 436 P.2d 786 (1968) and State ex rel. Donohue v. Coe, 49 Wash.2d 410, 418, 302 P.2d 202 (1956)). James D. Gordon III & David B. Mag......
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Elliott, In re, 39278
...P.2d 1040 (1961); Hutchinson v. Port of Benton, 62 Wash.2d 451, 383 P.2d 500 (1963). Recently this court in State ex rel. O'Connell v. Kramer, 73 Wash.Dec.2d 83, 436 P.2d 786 (1968), was asked to rule upon the constitutionality of a proposed initiative measure filed with the Secretary of St......
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Washington State Labor Council v. Reed
...was within the constitutional powers of article II, section 1(b). Id. at 716, 911 P.2d 389; see also State ex rel. O'Connell v. Kramer, 73 Wash.2d 85, 86, 436 P.2d 786 (1968) (parties stipulated to and agreed upon a statement of facts, thus obviating referral of the cause to superior court)......
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Coppernoll v. Reed
...Seattle Bldg. & Constr. Trades Coun. v. City of Seattle, 94 Wash.2d 740, 745, 620 P.2d 82 (1980) (citing State ex rel. O'Connell v. Kramer, 73 Wash.2d 85, 436 P.2d 786 (1968) and State ex rel. Griffiths v. Superior Court, 92 Wash. 44, 159 P. 101 (1916)). We have recognized two narrow except......