Washington State Labor Council v. Reed

• Decision Date: 03 April 2003
• Docket Number: No. 73235-3.,73235-3.
• Citation: 149 Wash.2d 48,65 P.3d 1203
• Court: Washington Supreme Court
• Parties: WASHINGTON STATE LABOR COUNCIL; Washington Retail Association; Washington Restaurant Association; Washington Food Industry; Washington Growers League; Aerospace Machinist Union No. 751; Washington Bankers Association; Purse Seine Vessel Owners Association; Coalition of Coastal Fisheries; Washington Food Processors Council; Washington State Auto Dealers Association, Inc.; Safeway, Inc.; Winco Foods, Inc.; Stormans, Inc.; and Fuller Market Basket, Inc., Petitioners, and Gary Locke, Governor of the State of Washington, Intervenor/Petitioner, v. Sam REED, in his official capacity as Secretary of State of the State of Washington, Respondent, and Elliot J. Swaney and Vote No on New Taxes, Intervenors/Respondents.

65 P.3d 1203

149 Wash.2d 48

WASHINGTON STATE LABOR COUNCIL; Washington Retail Association; Washington Restaurant Association; Washington Food Industry; Washington Growers League; Aerospace Machinist Union No. 751; Washington Bankers Association; Purse Seine Vessel Owners Association; Coalition of Coastal Fisheries; Washington Food Processors Council; Washington State Auto Dealers Association, Inc.; Safeway, Inc.; Winco Foods, Inc.; Stormans, Inc.; and Fuller Market Basket, Inc., Petitioners, and Gary Locke, Governor of the State of Washington, Intervenor/Petitioner, v. Sam REED, in his official capacity as Secretary of State of the State of Washington, Respondent, and Elliot J. Swaney and Vote No on New Taxes, Intervenors/Respondents.

No. 73235-3.

Supreme Court of Washington, En Banc.

Argued December 10, 2002.

Decided April 3, 2003.

Kathleen Benedict, Robin Dale, Erik Price, Olympia, Lane Powell Spears Lubersky, Michael King, Seattle, for petitioners.

Christine Gregoire, Atty. Gen., Narda Pierce, Jeffrey Even, William Collins, Asst. Attys. Gen., for respondent.

Timothy Ford, Kristopher Tefft, Christine Gregoire, Olympia, for respondent intervener.

Groen Stephens & Klinge, Richard Stephens, Diana Kirchheim, John Groen, Bellevue, for amicus curiae on behalf of Wash. State Legislature.

ALEXANDER, C.J.

An order was previously entered in this matter dissolving the temporary injunction we had earlier entered against Secretary of State Sam Reed. The injunction prevented him from certifying the results of the election on Referendum Measure 53. In that order we indicated that "[a]n opinion explaining the court's decision will be issued in due course." Wash. State Labor Council v. Reed, No. 73235-2, at 2 (Wash. Jan. 10, 2003) (order). This is that opinion.

We were asked by the Washington State Labor Council, et al. (WSLC) to issue a writ of mandamus, or in the alternative, a writ of prohibition, restraining the secretary of state from canvassing and certifying to the governor the vote count on Referendum Measure 53 (Referendum 53) from the November 5, 2002, general election. In its petition for the writ, WSLC asserted that Referendum 53 is outside the constitutional scope of referendum under article II, section 1(b) of the Washington State Constitution. We have determined that we will exercise our discretionary jurisdiction under article IV, section 4 of the constitution and consider this petition. After having done so, we conclude that because the legislature indicated that only section 2 of the underlying legislation, Engrossed House Bill 2901, is "necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions," the remainder of the bill is subject to referendum. Agreed Statement of Facts (ASOF) App. 2, at 25. Accordingly, the petition for the writ is denied.

I. Facts

Washington's 57th Legislature passed Engrossed House Bill 2901 (EHB 2901), now Laws of 2002, chapter 149, which amends Title 50 RCW, the state Employment Security Act. The bill was signed by Governor Gary Locke on March 26, 2002, with a partial veto of section 14 of the bill.¹ EHB 2901, inter alia, allocates additional money for training benefits for aerospace workers, sets new percentage amounts for determining class rates, sets new contribution rates for employers, creates an insolvency surcharge, creates an equity surcharge for employers with ineffective charges in their experience rating account for three of the four preceding years, addresses successor employer rates when an employer is not an employer at the time of the employee's transfer, as well as sets out other requirements in support of unemployment insurance and the Unemployment Security Department which administers the insurance.

On March 28, 2002, Elliot J. Swaney (Swaney) filed a proposed referendum with the Office of the Secretary of State referring to the people in the next general election all of the amendments made by the legislature to the Employment Security Act in sections 5, 7, 8, 10, 12, 13, 16, and 17 of EHB 2901. The secretary of state designated the filing as Referendum Measure 53.²

The proponents of Referendum 53 collected the required number of signatures and properly followed the statutory requirements for ballot measures. On June 4, 2002, the petitioners formally requested that Secretary of State Reed withhold Referendum 53 from the November 5, 2002, general election ballot. Secretary of State Reed declined to do so based on the historical practice of his office to refrain from determining whether a measure does or does not fall within the constitutional scope of the referendum process (except to decline referendums where the legislature has included an emergency clause). The secretary of state then certified Referendum 53 as supported by a sufficient number of signatures of registered voters to qualify for the November 5, 2002, ballot.

The petitioners, WSLC, then filed an original action in this court on July 8, 2002, seeking a declaration that Referendum 53 is unconstitutional. As relief they sought a writ of prohibition, or in the alternative a writ of mandamus,³ prohibiting the secretary of state from certifying to the county auditors a ballot including Referendum 53. Governor Gary Locke, and Elliot J. Swaney and Vote No on New Taxes (Vote No) were permitted to intervene as petitioners and respondents, respectively. All of the parties agreed upon a statement of facts which was submitted to this court.

Following oral argument to this court on September 10, 2002, we declined to issue a writ of mandamus or prohibition, indicating by order that there was "insufficient time to engage in the deliberations that a case of this magnitude demands," and because an immediate decision was not required by the dates of implementation of those sections of EHB 2901 included in Referendum 53. Wash. State Labor Council v. Reed, No. 72615-9 at 2 (Wash. Sept. 23, 2002) (order). The general election proceeded on November 5, 2002.

After the election, petitioners⁴ filed a second original action with this court on November 8, 2002, again seeking a writ of mandamus or a writ of prohibition prohibiting Secretary of State Reed from canvassing and certifying to the governor the votes on Referendum 53. The governor and Swaney and Vote No were again permitted to intervene. On the petitioners' motion, we enjoined the secretary from canvassing and certifying the results of the election on Referendum 53 until further order of the court. With leave of the court, Swaney and Vote No then filed a cross-petition seeking a writ of mandamus compelling the secretary of state and the governor to comply with their election duties to canvass and certify the votes, and to declare the results, under RCW 29.62.130.

II. Writ of Mandamus

We must first address the issue whether an original action before this court seeking a writ of mandamus is the appropriate procedure and remedy in this matter. This court has nonexclusive and discretionary original jurisdiction to issue a writ of mandamus against a state officer pursuant to article IV, section 4 of the constitution. Const. art. IV, § 4; State ex rel. LaFollette v. Hinkle, 131 Wash. 86, 89-90, 229 P. 317 (1924).

`[T]he established rule [regarding mandamus proceedings] seems to be that as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large, ... the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction.'

State ex rel. O'Connell v. Meyers, 51 Wash.2d 454, 459-60, 319 P.2d 828 (1957) (quoting State ex rel. Malmo v. Case, 25 Wash.2d 118, 123, 169 P.2d 623 (1946)). In our view, there is sufficient public interest in whether a referendum before the voters at the general election was, in fact, within the scope of the referendum power set forth in article II, section 1(b) of the constitution. Therefore, the question in this case is of such a character that we will exercise our original jurisdiction.

Although we are generally reluctant to interfere in the electoral process or to give advisory opinions, we have on previous occasions considered whether a ballot measure is authorized within the scope of the power of direct democracy reserved in article II, section 1(b). See, e.g., Andrews v. Munro, 102 Wash.2d 761, 689 P.2d 399 (1984)

; State ex rel. Kennedy v. Reeves, 22 Wash.2d 677, 157 P.2d 721 (1945); State ex rel. Robinson v. Reeves, 17 Wash.2d 210, 135 P.2d 75 (1943), overruled on the merits by State ex rel. Hoppe v. Meyers, 58 Wash.2d 320, 328, 363 P.2d 121 (1961); see also Philadelphia II v. Gregoire, 128 Wash.2d 707, 716-17, 911 P.2d 389 (1996) (a court may review the substance of a proposed initiative to determine whether it exceeds the scope of power set forth in Const. art. II, § 1). While it is preferred that a party seek an injunction at the superior court level instead of filing an original action in the Supreme Court, in rare circumstances we will consider judicial economy and reach the merits of whether an initiative or a referendum 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). As we determined in Philadelphia II, judicial economy compels us to consider the merits of this case. The parties have fully briefed and argued the substantive issues twice in five months, and if we were to decline to exercise ...