June 2002

The Initiative Process: The Supreme Court Versus the People

by James Bond

Time and again in the last decade the Washington State Supreme Court has invalidated voter-approved initiatives through which the people have sought to shape public policy on important issues,1 curb the power of their government,2 and secure tax relief for themselves and their fellow citizens.3 The court's performance in these cases raises two questions: (1) Has it articulated a clear, constitutionally based, and judicially enforceable test for determining when an initiative passes muster?; (2) Does it in fact invalidate initiatives on neutral legal grounds or on its collective political preferences? The answer to the first question is no; and though no outside observer can confidently know the answer to the second question, the court's often unedifying opinions in the initiative cases unfortunately invite speculation that is less than flattering to the court.

The court's most extended recent disquisition on the subject, its decision in the I-695 initiative case4 in November 2000, is a particularly egregious example of poor opinion-writing that confuses rather than clarifies the constitutional limits on the people's power to enact laws through the initiative process. Since citizens have persistently resorted to the initiative process in recent years, they are entitled to know, with as much clarity as the law permits, what constitutes a "single subject."5 The attorney general and citizens need to know, with as much specificity as the law permits, how to satisfy the requirement that the subject matter of the initiative must appear in the title. Moreover, all these criteria, however defined, ought to reflect some sense of the practical realities of both the initiative and governing processes.6

Even more importantly, the citizens of Washington should be informed, with as much insight as the court can muster, how the state constitution balances the competing interests of the people in exercising their retained sovereignty against the interest of the state government in exercising the legislative and executive powers delegated to it by those same people.7 Identifying and articulating this balance is critical because the court's more particular criteria should be grounded in it. Otherwise, these criteria will appear to be nothing but judicial inventions. That appearance will in turn undermine the court's moral authority, as citizens will inevitably conclude that the court prefers unclear and highly manipulable tests that allow its justices to impose their private views about the desirability of initiatives, either generally or in particular cases.

That the majority justices in the I-695 case failed to discharge their responsibility to clarify and ground the law in this area is clear, beginning with their curious statement of the facts. Since the court itself divides its substantive analysis into issues of justiciability and constitutionality, one might have expected the court to organize its statement of facts around those two meta-issues; it does not. Instead, it 1) describes what it understands I-695 does and doesn't do; 2) refers briefly to an explanation of the intent of the initiative supporters in the voters' pamphlet; and then 3) summarizes the claims of the seven plaintiffs (much as a law clerk might in the opening paragraph of a case memorandum to her judge).

The problem with the court's statement of facts is not that it misstates any facts. It doesn't. The problem is that the statement of facts doesn't illumine the critical issues in the case. Consequently, lawyers and citizens alike are left with no clear background understanding of the initiative process and no concise factual focus through which to understand the court's subsequent analysis. It is thus no surprise that this analysis fails to explore the relevant factual context of the issues it decides. Indeed, it rejects such evidence, when offered, as unhelpful.

The court's brief discussion of the justiciability issues, though ostensibly organized around the concepts of mootness, standing, justiciability, and failure to cross-appeal, seems in fact to be organized around the seriatim claims of the parties, as if acknowledging the party making a particular claim is more important than analyzing the substance of those claims, a sense reinforced by the court's general heading for Part I of its opinion: "Campaign's Motion to Dismiss." (Again, the organization looks like a preliminary summary of the parties' claims in a clerk's research memo.)

The court, complaining repeatedly that the campaign's briefing on three of the four justiciabilility issues is "inadequate," runs the risk, like the pot, of calling the kettle black when it first declines to decide those issues on that account, and then in a footnote simply asserts that "[i]n any event, it is clear that most, if not all, of the respondents have standing and [that] their claims are justiciable."8 Well, is it all or most? And why? If it is most, which ones? And on what grounds? The court is silent.

Moreover, the court, in the same section, ruminates on the question of whether standing is a question that may be raised at any time, acknowledging that it has previously held that it must be raised for the first time in the trial court, but conceding that the court has also flirted with the idea that concerns about separation of powers may justify permitting the issue to be raised for the first time on appeal. The court, having raised the possibility that it might need to harmonize or at least clarify its prior decisions on this issue, abruptly ends the discussion by announcing that "we need not resolve the issue in this case."9 Why not, one wonders? And if the answer to that question is so clear that it need not even be articulated, why raise the question in the first place?

Inadequate reasoning is presumably no more acceptable from a court of last resort than inadequate briefing is from the litigants who appear before it. But at least the court can always demand additional briefing. Disappointed litigants have no such recourse when the court offers ipse dixit rather than answers rooted in an elaboration of constitutional text and precedent.

Unfortunately, the quality of the court's opinion does not improve when it turns to the three substantive constitutional issues that concern it. The first of those issues is whether I-695 violates §19 of Art. II. That section requires that a "bill" must embrace a "single subject," which the court says must be clear from the title of the initiative.

The court insists that an initiative is a bill and that its constitutionality must thus be judged by the constitutional standards applicable to bills. Justice Sanders, in his lonely dissent,10 disputes the court's conclusion on this point and implores his colleagues to require further briefing on the question. His fellow justices do not even deign to reply to his argument that the "initiative equals bill" rule is 1) inconsistent with the plain meaning of the relevant constitutional text; 2) unsupported by a fair reading of the court's own precedents; and 3) unprincipled. Instead of offering a thoughtful analysis on this issue, the majority is content to throw out a series of statements that read like black-letter rules of law, supported by string citations. The critical facts of the cases cited are seldom compared or contrasted to the facts of the I-695 case, so that these sections of the opinion read more like a hornbook than an analysis of the case before the court.

Its hornbook summary is that a bill must deal with a single subject, all parts of which must evidence "a rational unity." The court itself concedes that "cases where violations of the single subject rule have been found have varied"11— an inevitable result, since the rational-unity criterion is scarcely self-defining. One might thus have expected the court to explore how such variances might be reconciled. It does not.

Instead, the court, after once again summarizing rather than analyzing the arguments of the parties to the case, selects Wash. Toll Bridge Auth. v. State12 as the determinative law on the meaning of the single subject/rational unity criterion. The court then asserts that the critical factual similarity between Toll Bridge and I-695 is that each had two purposes. The validity of the court's argument depends, of course, on whether the underlying facts reveal two purposes in the I-695 case, as did the facts in Toll Bridge. Once again the court offers no detailed analysis on this point. It merely shoehorns the facts of I-695 into the verbal categories, "not continuing in nature" versus "continuing in effect," articulated in Toll Bridge.

One can understand the court's reluctance to explore the campaign's argument that it had to subject future tax increases to referenda in order to prevent the legislation from simply increasing other taxes to replace those lost through repeal of the license-tab fees. The claim that political realities established a rational unity between the two provisions is not on its face a fatuous argument. At the same time the requirement that the Legislature must ask the people for their approval every time they raise or impose a new tax is not necessarily consistent with the concept of representative government, as the court subsequently argues. The difficulty of reconciling practical realities with theoretical principles is not an excuse, however, for avoiding the challenge. That is what judges are elected and paid to do.

The second constitutional issue was whether I-695 violated the §19 requirement that the subject of the initiative must be expressed in the title. This issue, the court insists, is whether the term "tax" in the I-695 referendum has a "traditional" or "broad" meaning, a distinction without a difference, since the "traditional" meaning of the term "tax" is quite broad: "a charge imposed by legislative or other public authority upon persons or property for public purposes."13

By playing word games and relying once again on ipse dixit,14 the court avoids the extraordinarily difficult challenge of articulating guidelines that reconcile the need to inform voters of the choice before them with the equally important need to treat the subject matter of the referendum with appropriate specificity. That challenge is especially acute where the subject matter involves taxation, which inevitably raises both theoretical and practical problems; but the court seems resolutely determined to avoid any discussion of these problems, as its recent, essentially summary opinion in the I-722 initiative case suggests.15

Interestingly, a cursory study of recent state Supreme Court cases involving challenges to state statutes on the grounds that their legislative titles violate the single-subject requirement reveals that the court applies the single-subject/rational-unity criterion rather more leniently when reviewing those challenges. In Washington v. Cornejo,16 for example, the court saw no violation where the legislative title was an "Act Relating to Violence Prevention," even though it conceded that the statute dealt with a number of issues including public health, firearms and other weapons, public safety, education, employment and media. Writing for the court, Justice Talmadge (a former legislator who is doubtless more sympathetic to the realities of the legislative process than to the realities of the initiative process) breezily concluded:17

[So long as] as a few well-chosen words [suggest] the general subject stated …any subject reasonably germane to such title may be embraced within the body of the bill.

In these and similar cases, the court implies that the designation of the legislation as an "omnibus bill" justifies such leniency. Apparently the court will not cut citizen-legislators, acting through the initiative process, any such slack.

The third constitutional issue was whether the I-695 requirement that the Legislature had to submit any future tax increase to the people violated Art. II, §1(b), which grants the Legislature discretionary authority to refer measures that it passes to the people for their approval. The court concluded that I-695 was unconstitutional because it 1) deprived the Legislature of that discretion; and 2) imposed a universal referendum procedure in violation of the requirement that at least four percent of the voters had to demand one. Responding to the state's assertion that I-695 only established a condition precedent to the implementation of any new tax statute, the court rejected the idea that the people, through referenda, can impose any such condition because it "unconstitutionally delegates legislative power in violation of Art. II, §1."18

In response to the argument that a principal (i.e., the people) may always control the acts of its agent (i.e., the Legislature), the court answered that the people "expressly surrendered much of that sovereignty to the state government when they adopted the constitution."19 Even if the court's sweeping generalization were true, the court had previously conceded in its opinion that the Washington State Constitution did not expressly prohibit conditional legislation; and the black-letter rules it repeatedly extracts from case law include the oft-repeated maxim that the people are acting as legislators when they use the referendum process. Why then can't they, too, acting in their legislative capacity, impose a condition precedent to the implementation of any new legislation? It may be too much to say that in the space of two paragraphs the court eviscerated its own argument; but it is not too much to say that the premises upon which it builds its argument appear to be somewhat contradictory.

The passage most revealing of the court's thinking on this issue in particular and I-695 in general may perhaps be gleaned from the further statement, one so important the court italicized its words lest their import go unnoticed by the reader:20

Under our form of government, ultimate sovereignty, so far as the state is concerned, rests in its people, and so long as the government established by them exists, that sovereignty remains with them, except in so far as they have

expressly surrendered it to a higher sovereignty.

Perhaps the citizens of Washington will be delighted to learn that there is a higher power in their state, and that it is the Legislature. The court's characterization of the state as possessing a sovereignty greater than that of the people is, however, inconsistent with the doctrine of popular sovereignty, the foundational principle of the American doctrine of limited government.21

The court's concern that the people, if permitted to impose resort to them before new laws could take effect, might be able to remove "all, or nearly all areas of legislation…from the Legislature's authority"22 may be more fanciful than realistic. It is nevertheless a legitimate concern to consider. That consideration, however, calls for an extended exploration of both the principles and practicalities of representative government in 21st century America in general, and Washington in particular. The American republic has been steadily "democratized," beginning with the "Age of Jackson"; and the initiative process is a child of the Progressive Movement, one of those periodic outbursts of enthusiasm for direct democracy that occur when the sleeping sovereign — the people — awakes and decides to exercise its power. The court seems uninterested in exploring the issue in that context. Unfortunately, string cites and the invocation of black-letter "rules" that march in pairs of complementary opposites are not an adequate substitute for that analysis.

The court closes its discussion of the third constitutional issue with an offhand observation on the possible application of its reasoning to an issue not before the court: can the state impose a requirement for local voter approval? The court answers yes, explaining: "The power to tax does not exist in a municipality absent a legislative grant of authority."23 The court betrays no embarrassment that it has just ridiculed and rejected, as providing no justification for the I-695 referendum requirement of popular approval for future tax increases, the analogous argument that the power to tax does not exist in the state, absent a grant of authority by the people.

The court must nevertheless have had some subliminal sense that it was treading into waters too deep to fathom, because it negated its offhand speculation on this point in a subsequent footnote, cautioning "that it [did] not want "to leave the impression that all local tax approval statutes would be constitutionally permissible. There may be circumstances where a local approval provision would not pass constitutional muster…."24 Presumably, the citizens of the state will have to wait until the court has had time to think about what those circumstances might be before they can determine whether this bit of obiter is just judicial flotsam or a stage-left hint to tax-initiative opponents that foreshadows future refinements of the law, which will permit the court to strike those initiatives.

The truly interesting question raised by the court's opinion in I-695 is why a court as distinguished as the Washington State Supreme Court would issue such an opinion. One feels especially pained for Justice Madsen, an able and conscientious judge, who is listed as the author of the opinion. She almost certainly had the unenviable task of holding together a majority, perhaps united in its distaste for I-695, but unable or unwilling to articulate a common rationale for that result. In those circumstances, it would have been fairer to Justice Madsen if the majority had issued a per curiam opinion. Justice per curiam, after all, doesn't have to stand for re-election.

It is equally curious and a matter of regret that Justice Talmadge did not write a concurrence. It is clear from his written and oral comments, since retiring from the bench, that he has thought long and hard about the constitutional parameters of the initiative process.25 Anyone familiar with his formidable intellect and tenacity in argument, as well as his willingness to dissent or concur whenever he deems the majority opinion inadequate, would have expected him to write separately. Moreover, a concurrence would have given him one last opportunity to cross swords with his bęte noire, Justice Sanders, whose intellect and tenacity match Talmadge's. There is little doubt that, had Talmadge accepted the gauntlet Sanders threw down, the important issues in this case would have been more thoughtfully explored. Unfortunately, that exploration will have to wait for another day.

Until that day comes, the court will have to excuse the perhaps unfairly cynical but understandably disappointed advocates of these measures who may feel that the court majority prefers to leave this area of the law unclarified so that they can sustain those initiatives they deem "progressive" (i.e., liberal) and strike those they consider "populist" (i.e., conservative).26

Indeed, the court recently confirmed that perception in the "son of I-695" case, Amalgamated Transit Legislative Council v. State. The court faced this question: Did the Legislature, when it enacted a law to reduce the license-tab fee to $30, also intend to eliminate local license fees? The five-person majority said no, the Legislature intended no such thing. Justice Owens reached this conclusion despite the fact that the average voter who supported I-695 must have thought that his license fee would be reduced to $30 if the initiative passed; and legislators repeatedly assured angry voters that the license-tab bill would reverse the court's I-695 decision.

To reach its conclusion, the court must have assumed that it was more likely that the average voter said to himself as he left the polling booth: "Thank God for little things. Now all I'll have to pay are the special (i.e., local) excises." Alternatively, it may have assumed that terrified legislators, who feared the wrath of irate voters if they didn't overturn the court's I-695 decision, chuckled to themselves as they hawked the license-tab bill as doing just that: "Those dumb voters won't even notice when they renew their tabs that they're paying more than $30!" As Justice Madsen, freed of the need to accommodate all her fellow justices, acerbically observed in her dissent:

The majority's absurd result is also an unnecessary result. The highly interconnected statutory scheme which existed prior to repeal of the MVET makes it abundantly clear that the special excise tax of RCW 35.58.273 was a part of the total MVET. The more reasonable conclusions are that the MVET and the special excise tax have always been interconnected, the special excise tax was a portion of the MVET allocated to local public transit programs if the local municipality opted to levy and collect the tax, and the act repealing the MVET is clearly inconsistent with and repugnant to the continued existence of the special excise tax and therefore impliedly repealed as well.27

Progressives will doubtless applaud the court's decision as preserving the government's authority to tax so that it can generate revenues, which they believe are desperately needed to fund government programs. Populists will simply wonder who they need to throw out — the justices or the legislators — if they are ever going to get control of what they (quaintly?) think of as "their" government.

NOTES

1. E.g., I-316: Shall the Death Penalty Be Mandatory in the Case of Aggravated Murder in the First Degree (1975). But see State v. Manussier, 129 Wn.2d 652 at 659, 921 P.2d 473 at 476, 921 P.2d 482 (1996) (I-593: Shall Criminals Who Are Convicted of "Most Serious Offenses" on Three Occasions Be Sentenced to Life in Prison without Parole? (1993)).

2. E.g., Geberding v. Munro, 134 Wn.2d 188, 949 P.2d 1366 (1998) (I-573: Shall Candidates for Certain Offices Who Have Already Served for Specified Periods in those Offices Be Denied Ballot Access?).

3. E.g., Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 11 P. 3rd 762 (2000); City of Burien v. Kiga, 144 Wn.2d 819, 31 P.3d 659 (2001). Cf. ATU Council of State v. State, 2002 WL 220629, 40 P.3d 656 (Wash 2002).

4. Ibid.

5. See generally, Campbell, In the Eye of the Beholder: The Single Subject Rule for Ballot Initiatives, The Battle over Citizen Lawmaking: The Growing Regulation of Initiative and Referendum 131 (M. Dane Waters, ed. 2001).

6. See generally, Even, Direct Democracy in Washington: a Discourse on the Peoples' Powers of Initiative and Referendum, 32 Gonz. L. Rev. 247 (1996-7).

7. Compare, Denny, Initiatives — Enemy of the Republic, 24 Seattle L. Rev. 1023 (2001); and Marlowe, Direct Democracy Is Not Republican Government, 24 Seattle L. Rev. 1032 (2001).

8. Amalgamated Transit at 142 Wn.2d. at 203, 11 P.3rd at 779 (footnote 4).

9. Amalgamated Transit at 142 Wn.2d. at 203, 11 P.3rd at 779 (footnote 4).

10. Amalgamated Transit at 142 Wn.2d. at 258-280, 11 P.3rd at 806-818.

11. Amalgamated Transit at 142 Wn.2d. at 211, 11 P.3rd at 783.

12. Wash. Toll Bridge Auth. v. State, 49 Wn.2d. 520, 304 P.2d 676 (1956).

13. Amalgamated Transit at 142 Wn.2d. at 219, 11P.3rd at 787.

14. It is scarcely "clear," for example, that "license fees, impact fees and permitting fees" are not "charges upon persons or property for purposes," as the Court confidently asserts. If no public purpose justifies their imposition, why are they imposed?

15. City of Burien v. Kiga, P.3d (2002), 31 P.3d 659 (2001).

16.130 Wn.2d 553, 925 P.2d 964 (1996).

17. Id. at 566, 925 P.2d at 971.

18. Amalgamated Transit at 142 Wn.2d at 237, P.2d at 976, 142 Wn.2d. at 238.

19. Amalgamated Transit at 142 Wn.2d at 237, 11P.2d at 796, 142 Wn.2d. at 238.

20. Amalgamated Transit at 142 Wn.2d at 237, 11 P.3rd at 796, 142 Wn.2d. at 238.

21. Justice Souter has explained that fundamental principle in these terms: "The American development of divided sovereign powers, which 'shattered the categories of government that had dominated Western thinking for centuries'…was made possible only by the recognition that ultimate sovereignty rests in the people themselves." Seminole Tribe v. Florida, 517 U.S. 44, at 151 (1996) (dissent).

22. Amalgamated Transit at 142 Wn.2d at 242, 11 P.3d at 799.

23. Amalgamated Transit at 142 Wn.3d at 245, 11 P.3rd at 800.

24. Amalgamated Transit at 142 Wn.2d at 245, 11 P.3rd at 800 (footnote 19: "We do not wish to leave the impression that absent the constitutional infirmities under Art. II, §§1, 19 and 37, section 2 would be valid as to voter approval for all local tax measures. There may be circumstances where a local voter-approval provision would not pass constitutional muster for reasons other than addressed in this opinion.").

25. Talmadge, Initiative Process in Washington, 24 Seattle L. Rev. 1016 (2001).

26. Cf. Miller, Courts as Watchdogs of the Washington State Initiative Process, 24 Seattle L. Rev. 1049, 1071-1080 ("…the Washington Supreme Court in Amalgamated Transit was playing the watchdog baring its teeth, and signaling to Populists like Tim Eyman that it will resist their battering rams.").

27. ATU Legislative Council v. State, 2002 WL 220629, 40 P.3d 656, 668. ATU Legislative Council not published in the official reporter as of 4-9-02.