State ex rel. Jones v. Charboneau's, 3111-III-0

• Court: Court of Appeals of Washington
• Writing for the Court: MUNSON; GREEN, C. J., and ROE
• Citation: 27 Wn.App. 5,615 P.2d 1321
• Parties: STATE of Washington, on the relation of Jay Roy JONES, as Prosecuting Attorney for Asotin County, Respondent, v. CHARBONEAU'S; Kenneth H. Merrill, Sr.; Danele Marie Morrow; Claira A. Collins; and William David Cucinello, a/k/a W. D. Cucinello, Appellants.
• Docket Number: No. 3111-III-0,3111-III-0
• Decision Date: 29 July 1980

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27 Wn.App. 5 615 P.2d 1321 STATE of Washington, on the relation of Jay Roy JONES, as
Prosecuting Attorney for Asotin County, Respondent,
v.
CHARBONEAU'S; Kenneth H. Merrill, Sr.; Danele Marie Morrow;
Claira A. Collins; and William David Cucinello,
a/k/a W. D. Cucinello, Appellants. No. 3111-III-0. Court of Appeals of Washington, Division 3, Panel Two. July 29, 1980.
Reconsideration Denied Sept. 3, 1980.

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[615 P.2d 1322] Clinton J. Henderson, Clarkston, William J. Tway, Boise, Idaho, for appellants.

John L. Lyden, Pros. Atty., Linford C. Smith, Deputy Pros. Atty., Asotin, for respondent.

MUNSON, Judge.

Defendants appeal from a decree enjoining them from maintaining and continuing a business, under the assumed business name of Charboneau's after finding the business was a moral nuisance pursuant to and defined in RCW 7.48.052(6) as a "place which, as a regular course of business, is used for the purpose of lewdness, assignation, or prostitution, . . . ." ¹ We reverse and dismiss.

Three undercover officers testified they went to Charboneau's establishment, located in Clarkston, and paid a "standard" fee of $45 for a shower, sauna and "sexual technique analysis." The court found the proof of "sexual therapy . . . was totally insufficient and not persuasive; and that the business maintained at said premises is not legitimate or lawful."

None of the court's findings is challenged; of the five constitutional issues raised, we find one issue is dispositive, i.e., does the ballot title of Initiative 335, now codified in RCW 7.48.050-.100, meet the constitutional requirements of art. 2, § 19 of the Washington State Constitution which provides: "No bill shall embrace more than one subject, and that shall be expressed in the title?" We find the title violative of the constitution and dismiss the action.

Initiative 335, approved by the voters November 8, 1977, amended and added to the prior statutes relating to

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nuisances. ² Moral nuisances are defined as those places which sell or exhibit lewd films and publications, and also places where prostitution, lewdness, illegal gambling, drunkenness, fighting or opium smoking is permitted. RCW 7.48.052.

[615 P.2d 1323] By statute, the attorney general is required to formulate an official ballot title of no more than 20 words which shall express "a true and impartial statement of the purpose of the measure; . . ." which is then transmitted to the Secretary of State. RCW 29.79.040. The Secretary of State certifies that ballot title to the county auditors to be placed on the ballot at the next general or special election. RCW 29.79.230. The ballot title of Initiative 335 issued by the attorney general January 28, 1977, read as follows: ³

Shall places where obscene films are publicly and regularly shown or obscene publications a principal stock in trade be prohibited?

Initially we must decide whether the constitutional provision applies to initiatives. In Senior Citizens League, Inc. v. Department of Social Security, 38 Wash.2d 142, 228 P.2d 478 (1951), the court ruled that the constitutional provision did not apply to initiative measures. Cf. State ex rel. Seymour v. Superior Court for Thurston County, 168 Wash. 361, 364, 12 P.2d 394 (1932). This position, however, was substantially weakened, if not rejected outright, by six judges in Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911 (1974). In Yelle v. Kramer, 83 Wash.2d 464, 470, 520 P.2d 927 (1974), ⁴ an ad hoc

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supreme court in passing upon the validity of an initiative noted at 470, 520 P.2d at 930 that Fritz v. Gorton, supra, "throws some doubt upon the efficacy of Senior Citizens." The passage of an initiative, by the people, is an exercise of the same power of sovereignty as the passage of a law by the legislature. "Each is simply the exercise of the legislative power of the state." State v. Paul, 87 Wash. 83, 90, 151 P. 114 (1915). See Love v. King County, 181 Wash. 462, 44 P.2d 175 (1935). See also Trautman, Initiative and Referendum in Washington: A Survey, 49 Wash.L.Rev. 55, 66 (1973-74). " 'All laws on any subject whatever, enacted by either the people or the legislature, must be governed by the provisions of the constitution . . .' " Yelle v. Kramer, supra at 472, 520 P.2d at 932, quoting from Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81 (1933). Thus, we conclude that the people acting in their legislative capacity through the initiative process are governed by art. 2, § 19 of the Washington State Constitution.

Appellant contends...