Walker v. Munro

Decision Date29 August 1994
Docket NumberNo. 61213-7,61213-7
Citation879 P.2d 920,124 Wn.2d 402
CourtWashington Supreme Court
PartiesGeorge WALKER, a Washington Citizen; The Children's Alliance; Washington Council for Senior Citizens; The Puget Sound Council for Senior Citizens; Sid Snyder, State Senator and a Washington Citizen; Marlin Appelwick, State Representative and a Washington Citizen; Professor Leroy Hood, a Washington Citizen; Barbara Schaad-Lamphere, a Washington Citizen; Brendan Williams, a Washington Citizen; Kevin Dunn and Cecilia Dunn, husband and wife, and Washington Citizens, Petitioners, v. Ralph MUNRO, Secretary of State; Christine Gregoire, Attorney General; Joel Pritchard, President of the Washington State Senate; Brian Ebersole, Speaker of the Washington State House; and Daniel Grimm, State Treasurer, Respondents, and Washington Taxpayer Protection Coalition and Linda Smith, Intervenors. En Banc

Kevin Dunn and Cecilia Dunn, husband and wife, and

Washington Citizens, Petitioners,

v.

Ralph MUNRO, Secretary of State; Christine Gregoire,

Attorney General; Joel Pritchard, President of the

Washington State Senate; Brian Ebersole, Speaker of the

Washington State House; and Daniel Grimm, State Treasurer,

Respondents,

and

Washington Taxpayer Protection Coalition and Linda Smith, Intervenors.

No. 61213-7.

Supreme Court of Washington,

En Banc.

Aug. 29, 1994.

Preston, Gates & Ellis, Paul J. Lawrence, John David Fugate, Seattle, for petitioners.

Christine O. Gregoire, Atty. Gen., Narda Pierce, Sol. Gen., Jeffrey T. Even, Asst., Anne E. Egeler, Asst., Olympia, for respondents.

James M. Johnson, Olympia, for intervenors.

Hugh D. Spitzer, Seattle, amicus curiae for petitioners on behalf of American Ass'n of University Professors.

Ronald A. Zumbrun, Robin L. Rivett, Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, CA, John M. Groen, Pacific Legal Foundation, Bellevue, amicus curiae for respondents on behalf of Pacific Legal Foundation.

BRACHTENBACH, Justice.

Petitioners bring an original action, requesting a writ of mandamus, a declaratory judgment, and an injunction, based on the claimed unconstitutionality of certain provisions of Initiative 601 under the state constitution. The Respondents and Intervenors move to dismiss the action. We grant the motion to dismiss.

On November 2, 1993, Initiative 601 was approved by the voters by a vote of 774,342 in favor and 737,735 opposed. Generally, Initiative 601 is a measure limiting expenditures, taxation, and fees. Section 8, limiting the amount fees may be increased, and section 13, providing for voter approval for certain tax measures, went into effect immediately. The rest of the provisions will not take effect until July 1, 1995.

Beginning July 1, 1995, the state tax revenue limit will be replaced by a state expenditure limit. Under section 2 of the initiative, the limit for a fiscal year is to be calculated by increasing the previous year's limit by a percentage equal to the fiscal growth factor, which is derived by averaging the sum of inflation and population change for a 3-year period. The State Treasurer is prohibited from issuing or redeeming a check, warrant, or voucher that will result in a general fund expenditure beyond the limit for the fiscal year.

Under section 3 an emergency reserve fund is established, in which state revenues in excess of the expenditure limit are deposited. Moneys from the fund may be appropriated, within limits, only by approval of two-thirds of the members of each house of the Legislature. If the emergency reserve fund balance exceeds a certain amount, the balance is transferred to an education construction fund. The Legislature may only appropriate moneys from that fund for school construction, unless the appropriation is approved by a two-thirds vote in each house and is approved by a vote of the people at the next general election.

Under section 4, any action that raises state revenue or requires a revenue-neutral tax shift may be taken if approved by a two-thirds vote of each house and if the state expenditures will not exceed the expenditure limits. If the action results in expenditures in excess of the limit, then the action requires a two-thirds majority in each house and voter approval at the next general election. Where an emergency has been declared, the state expenditure limit may be exceeded if approved by two-thirds of each house and signed by the Governor.

Under section 8, effective immediately, a fee may not increase in a fiscal year by a percentage in excess of the growth factor, unless there is prior legislative approval. Section 13, which continues in effect only until July 1, 1995, when the other provisions become effective, provides that voter approval is required to raise existing taxes, impose new taxes, or make revenue-neutral tax shifts.

In December 1993, the Petitioners requested that the Attorney General file suit on their behalf and on behalf of the taxpayers of Washington, to challenge the constitutionality of Initiative 601. The Petitioners include: three public advocacy groups (one relating to children and two relating to senior citizens), two legislators, and six Washington citizens. The Attorney General refused to file suit. The Petitioners then filed a petition in this court. The Respondents, five state officials, answered the petition and moved to transfer the cause to Thurston County Superior Court. We denied the motion. Linda Smith and the Washington Taxpayer Protection Coalition, sponsors of the initiative, moved to intervene and the motion was granted. The Intervenors then moved to dismiss, which was followed by the Respondents' motion to dismiss. We first set the hearing on the motion to dismiss in conjunction with oral argument on the substantive issues, but later ordered that the motion to dismiss be heard separately. We now grant the motion to dismiss.

The Petitioners seek a writ prohibiting the Respondent state officials from implementing and enforcing Initiative 601, a declaratory judgment that Initiative 601 is unconstitutional, and a permanent injunction barring its operation. Petition For Writ Of Mandamus and for Declaratory Judgment and Injunctive Relief (hereinafter Petition), at 2. The Petitioners assert that jurisdiction of this court is founded upon Const. art. 4, § 4; RAP 16.2(a); RCW 7.16.150 et seq. (governing mandamus proceedings); and RCW 7.24.010 et seq. (the Uniform Declaratory Judgments Act). Under the Washington State Constitution, the Supreme Court has original jurisdiction in "habeas corpus, and quo warranto and mandamus as to all state officers". Const. art. 4, § 4. Petitioners assert they are seeking declaratory and injunctive relief as incidental to the writ of mandamus. Brief of Petitioners, at 43.

With the exception of sections 8 and 13, none of the provisions of the initiative are effective until July 1, 1995. Unless otherwise noted, the following discussion relates to the Petitioners' claims regarding those sections of the initiative not yet effective, which are the primary focus of this action. We will address sections 8 and 13 separately.

We note at the outset that mandamus is an extraordinary writ. Our original jurisdiction to issue a writ is both nonexclusive and discretionary. Department of Ecology v. State Fin. Comm., 116 Wash.2d 246, 804 P.2d 1241 (1991). When directing a writ to the Legislature or its officers, a coordinate, equal branch of government, the judiciary should be especially careful not to infringe on the historical and constitutional rights of that branch.

In their petition, the Petitioners request the court to issue a writ of mandamus directing the Respondents "to adhere to the requirements of the Washington State Constitution and to prohibit them from implementing and enforcing Initiative 601". Petition, at 18. Writs are not directed at a general course of conduct. In State ex rel. Taylor v. Lawler, 2 Wash.2d 488, 490, 98 P.2d 658 (1940), we said:

The jurisdiction given to this court by the state constitution in Art. IV, § 4, to issue writs of mandamus to state officers, does not authorize it to assume general control or direction of official acts.

Instead, the remedy of mandamus contemplates the necessity of indicating the precise thing to be done. Clark Cy. Sheriff v. Department of Social & Health Servs., 95 Wash.2d 445, 450, 626 P.2d 6 (1981) (citing State ex rel. Hawes v. Brewer, 39 Wash. 65, 80 P. 1001 (1905)). In State ex rel Pacific Am. Fisheries v. Darwin, 81 Wash. 1, 12, 142 P. 441 (1914) (citing State ex rel. Hawes v. Brewer, 39 Wash. 65, 67-69, 80 P. 1001 (1905)), we also stated:

Mandamus will not lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties....

... It is therefore necessary to point out the very thing to be done; and a command to act according to circumstances would be futile.

It is hard to conceive of a more general mandate than to order a state officer to adhere to the constitution. We have consistently held that we will not issue such a writ.

This does not mean that a writ cannot issue in regards to a continuing violation of a duty. Where there is a specific, existing duty which a state officer has violated and continues to violate, mandamus is an appropriate remedy to compel performance. See Clark Cy. Sheriff v. Department of Social & Health Servs., supra (cited by the Petitioners). In Clark Cy. Sheriff, the Department of Social and Health Services was required by statute to accept all convicted felons offered by the sheriff for transfer to a reception center. The Director of the adult corrections division maintained that he had discretionary power to delay acceptance. The Department of Social and Health Services repeatedly accepted less than half the persons offered for transfer, and took the position that it could continue to do so. This court upheld the superior court order granting a writ of mandamus to compel the Department of Social and Health Services to accept the felons. Although this writ was directed at future conduct, i.e., accepting the felons in the future, the Director had also failed to act on many previous occasions. Further, the order compelling the Director to perform his duty was quite specific. The court ordered the Director to receive at the reception center inmates of the Clark County Jail convicted of a felony and committed to a state penal institution by...

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