October 2000 

Take the Initiative on  Constitutionality

by Hugh Spitzer

Many Washingtonians have expressed frustration with hard-won ballot measures that are declared unconstitutional by the courts. These include Referendum 47's slowdown on property reappraisal for tax purposes that was declared invalid in 1998. Initiative 695, which recently was held by two superior courts to violate the state's constitution, is now before the state Supreme Court.

Some groups, including the League of Women Voters, have asked for a method of letting voters know ahead of an election, whether a particular initiative is constitutional. It may be possible to do this in some form, but we must keep four things in mind.

First, our courts have avoided ruling on the constitutionality of laws before they are passed. It is difficult enough for judges to throw out a law passed by the voters or their representatives. Courts prefer to rule when they are dealing with a real law applied to real facts. The U.S. Supreme Court and almost all state courts decline to make advisory, abstract rulings on legislation that doesn't yet exist. The problem is that without a concrete dispute in which lawyers on both sides develop creative arguments on constitutionality, the courts will not be able to consider all possible legal views. Furthermore, Washington courts rarely bar an initiative from the ballot, and then only if the topic of the measure is clearly beyond the proper sphere of the initiative power.

Second, only the courts are empowered to finally determine if a statute is constitutional, whether that statute is enacted by the Legislature or by the people. If some other body issues an opinion as to whether or not a proposed initiative is constitutional, it is just that — an opinion. The state Supreme Court ultimately might take an opposite view, and that court has the last word on Washington's constitution.

Third, it would be unfair to ask the attorney general to provide an advisory opinion on any proposed law. If the Legislature or the people pass a measure, the attorney general is duty bound to defend it, regardless of whether she had advised that it was constitutional or not. Under the ethics rules governing lawyers, the attorney general might have to appoint an independent outside counsel to defend a statute if she had labeled it invalid just months before. This would create a situation where the attorney general could not carry out one of her basic duties: defending properly enacted laws. This would also be costly.

Fourth, any advisory ruling mechanism would cost tax money, and the more elaborate the pre-vote process, the more expensive. Between 1914 and 1999, 940 separate initiative measures were filed, but only 134 received enough valid signatures to appear on the November ballot. Should an indication of constitutionality be provided for all initiatives filed, regardless of how likely they are to succeed, or just for the ones that receive sufficient signatures? If it were limited to the measures that qualified for the ballot, the sponsors would be quite disappointed to hear of possible defects in their proposal only after they had spent so much time, money and effort at collecting signatures.

The following approach might work if the Legislature were willing to establish it by statute and then provide the necessary financial support. A three- or five-member non-partisan commission could be appointed by the governor and confirmed by the Senate. A majority of the commission would be retired judges. The commission members would not be compensated, but the body would have a small paid staff including at least one lawyer. The staff might be housed in one of the state's three law schools.

When citizens propose draft initiatives, the commission's staff could assist in drafting and would comment on potential constitutional problems. Currently, the Office of the State Code Reviser gives simple assistance to initiative proponents, who need not follow that office's advice. The commission's staff would provide a somewhat higher level of assistance and comment, without interfering with the sponsors' goals or final decisions on wording. But some warning would be provided to proponents about potential constitutional issues. The commission's advice would be accompanied with a notice that neither that body nor its staff would be deemed attorneys for the initiative's sponsors, and that in any event the courts might view the text of a measure differently than the commission.

The attorney general's office would continue to be responsible for drafting the actual ballot title, although this task might instead be handled by the commission. Later, when initiatives gain enough signatures to qualify, the commission would study those measures and provide, in the official voters' pamphlet, a paragraph listing the possible constitutional challenges that might later be raised. The analysis would be accompanied by a warning that the commission's views are preliminary, are not binding in any way, and that the courts might view the measure differently. This warning would also accompany the commission's statement in cases where it had found no potential constitutional defects.

Why shouldn't the voters have the assistance of professional staff, since the Legislature itself has paid specialists who help draft bills and advise legislators about potential constitutional problems posed by proposals? Because the commission would provide notice of possible constitutional problems, the voters would have some forewarning of issues that might later be raised. They could take that into account in deciding whether or not to support a proposal. Finally, if an initiative were later found to be constitutionally defective, the citizens would have much less cause to complain that they had not been warned.

A commission like this cannot substitute for either an initiative sponsors' final decision on what they wish to put before the voters, or the Supreme Court's last word on what is or isn't constitutional. But such a commission might give both proponents and voters an earlier perspective of constitutional issues that could later cause an initiative's demise.

This article was originally printed in July 2000 in the Seattle Post-Intelligencer.

Hugh Spitzer is an attorney with Foster Pepper & Shefelman PLLC in Seattle and an affiliate professor at the University of Washington School of Law, where he teaches state constitutional law.

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