STATE OF WASHINGTON

THURSTON COUNTY SUPERIOR COURT

 

DAVID GOLDSTEIN,                                             Petitioner,         v.   CHRISTINE GREGOIRE, in her official capacity as Attorney General of the State of Washington,,                                             Respondent.

NO. 03-2-00221-3   petitioner's memorandum in opposition to declaratory judgment or injunction

 

INTRODUCTION

The Attorney General's request for an injunction is premature. Because the initiative has not yet become law, no "justiciable controversy" exists. A ruling on the constitutionality of Initiative 831 at this time would improperly involve the court in the legislative process and violate separation of powers principles. If the court is announcing a new rule of pre-ballot judicial review, the attorney general should be required to bring injunction motions as to all pending initiatives that are arguably unconstitutional or beyond the scope of the initiative power. Otherwise, the government will be engaged in content-based censorship in violation of the First Amendment. The simple and legally correct solution is to defer ruling until the voters have enacted an initiative and a justiciable controversy exists. If the court decides to review the constitutionality of Initiative 831 at this time, the court should find that this initiative is a constitutional exercise of legislative power. In any event, the Attorney General's motion for declaratory relief and injunction should be denied.

A.                     The Attorney General's Request for an Injunction or Declaratory Relief is Premature.

 

Washington courts are prohibited from entertaining cases that do not present a "justiciable controversy." Walker v. Munro, 124 Wash.2d 402, 411, 414, 879 P.2d 920 (1994). A "justiciable controversy" means:

(1) ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.

Walker, 124 Wash.2d at 411, 879 P.2d 920 (quoting Nollette v. Christianson, 115 Wash.2d 594, 599, 800 P.2d 359 (1990)).

Where the four justiciability factors are not met, "the court steps into the prohibited area of advisory opinions." Diversified Indus. Dev. Corp., 82 Wash.2d at 815, 514 P.2d 137. Washington courts will exercise discretion to issue advisory opinions only in rare cases of overriding public interest. See, e.g., Seattle School District No. 1 v. State, 90 Wn.2d 476, 490, 585 P.2d 71 (1978).

            Washington courts are particularly reluctant to issue advisory opinions with respect to proposed initiatives. As the Washington Supreme Court explained in Philadelphia II v. Gregoire, 128 Wn.2d 707, 717, 911 P.2d 389 (1996),

Recognizing the importance of the initiative power, . . . this court has allowed for pre-election review only in rare circumstances, consistently making the distinction that while a court may decide whether the initiative is authorized by article II, section 1, of the state constitution, it may not rule on the constitutional validity of a proposed initiative. Seattle Bldg. & Constr. Trades Council, 94 Wash.2d at 745-46, 620 P.2d 82.

 

See also, State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 87, 436 P.2d 786 (1968) (". . . questions as to the validity of the proposed initiative measure are not before us and should not come before us unless and until the people have enacted the measure into law, for the Supreme Court does not render advisory opinions").

 

B.                     Initiative 831 is Within the Scope of the Initiative Power.

 

Article II, Section 1 of the Washington Constitution grants plenary legislative power to the electorate. Any area in which the legislature has power is within the "scope" of the initiative power. There is no question that the legislature has power to make a proclamation regarding an individual. The Attorney General cites no constitutional provision that is violated by the proposed initiative. The unsupported suggestion that the legislature does not pass laws that express a sentiment but require no action is refuted by numerous laws on the books. For example, RCW 1.40.010 authorizes a commission to award the Washington Medal of Merit to certain individuals. RCW 10.50.030 provides for awarding the Washington Gift of Life Award to certain families of organ donors. RCW 1.60.010 provides for the award of the Washington Medal of Valor to especially courageous Washingtonians. RCW 1.16.050 honors numerous named individuals and events by declaring legal holidays. Many of these holidays have no legal effect whatsoever. After listing all the holidays on which state employees get the day off, the statute provides:

The legislature declares that the twelfth day of October shall be recognized as Columbus Day but shall not be considered a legal holiday for any purposes. The legislature declares that the ninth day of April shall be recognized as former prisoner of war recognition day but shall not be considered a legal holiday for any purposes. The legislature declares that the twenty-sixth day of January shall be recognized as Washington army and air national guard day but shall not be considered a legal holiday for any purposes. The legislature declares that the seventh day of August shall be recognized as purple heart recipient recognition day but shall not be considered a legal holiday for any purposes. The legislature declares that the second Sunday in October be recognized as Washington state children's day but shall not be considered a legal holiday for any purposes.
The legislature declares that the sixteenth day of April shall be recognized as Mother Joseph day and the fourth day of September as Marcus Whitman day, but neither shall be considered legal holidays for any purpose. The legislature declares that the seventh day of December be recognized as Pearl Harbor Remembrance Day but shall not be considered a legal holiday for any purpose.

The legislature routinely passes other kinds of resolutions to honor named individuals. See, e.g., 28B.20.462 (establishing Warren G. Magnuson biomedical institutes); 28B.20.468 (establishing Warren G. Magnuson educational trust fund); 28A.625.030 (establishing the Washington State Christa McAuliffe award for teachers). The Attorney General has cited no decision or constitutional provision that prevents the legislature from passing laws that express public pride, outrage, and other messages about individuals or ideas.

The cases cited by the Attorney General holding that initiatives are beyond the scope of legislative power fall into two categories: 1) cases holding that a proposed initiative purports to legislate outside the limits of the jurisdiction in which the initiative is proposed. See Philadelphia II; Seattle Building and Construction Trades Council v. City of Seattle, 94 Wn.2d 740, 620 P.2d 82 (1980); In re Initiative Pet. No. 364, 930 P.2d 186 (Okla. 1996); AFL-CIO v. Eu, 36 Cal. 3d 786, 686 P.2d 609 (1984); and 2) cases holding that a proposed initiative is an improper attempt to usurp administrative functions of a county or municipality. See, e.g. Ford v. Logan,79 Wn.2d 147, 483 P.2d 1247 (1971); Ruano v. Spellman, 81 Wash.2d 820, 505 P.2d 447 (1973); Leonard v. City of Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976). But the Attorney General cites no cases, and Petitioner's research reveals no cases rejecting an initiative or other legislation that expresses outrage about the misconduct of a named individual. The Attorney General's claim that the measure is not legislation is thus completely without supporting authority. Initiative 831 is legislative and would be codified in the same way as the statutes designating days, honors, and awards honor people or commemorate events.

C.                     The Attorney General May not Selectively Censor Initiatives Based on Their Content.

 

This case has important First Amendment implications. The Initiative process is a public forum for citizens to seek legislative change. Many initiatives are presented to the people that are arguably unconstitutional or beyond the scope of the legislative power. For example, Tim Eyman's Sound Transit Initiative would prevent Sound Transit from spending money on a "Link Light Rail" system. This proposed initiative is clearly beyond the scope of legislative power under Ruano v. Spellman and other cases holding that initiatives cannot seek to prohibit administrative actions. The Attorney General has done nothing to prevent Mr. Eyman from going forward with his initiative. Proposed Initiative 824 is a statement. The Attorney General has taken the position in the present case that statements are not legislative, yet nothing has been done to prevent Initiative 824 from going forward.

Allowing the Attorney General discretion to select initiatives for challenge based on their palatability would violate the First Amendment. If pre-ballot review is to be applied to some initiatives, it should be applied to all initiatives that are arguably unconstitutional or beyond the scope of legislative power. Having an initiative placed on the ballot allows the sponsor and supporters of the initiative a unique opportunity to express their political point of view in a formal voters pamphlet distributed to all registered voters. The Attorney General and the court cannot choose to grant this opportunity to some and not to others. The simple way to avoid this problem is to defer any judicial review of proposed initiatives until they are enacted into law, and a justiciable controversy is presented. If the court intends to engage in a pre-ballot review procedure, that procedure must be applied equally, and the court should issue a writ of mandamus requiring the Attorney General to seek an injunction as to Mr. Eyman's Sound Transit initiative and as to I-824.

 

D.                     Initiative 831 is a Constitutionally Permissible Exercise of Legislative Power.

 

The Attorney General concedes that issues about whether Initiative 831 is a "bill of attainder" or "special law" may not be considered until after a measure's enactment. The Attorney General also concedes that the initiative is neither a "bill of attainder" nor a "special law."

As the Attorney General concedes, Initiative 831 is not a "bill of attainder" because it does not impose punishment on Mr. Eyman. The Attorney General also concedes that the initiative is not "special legislation" because it does take any of the measures enumerated in the "special legislation" clause of the Washington Constitution.

CONCLUSION

For these reasons, the Attorney General's Motion for Declaratory Relief and Injunction should be denied, and the counterclaims in this case should be dismissed. If the court intends to engage in pre-ballot review, a writ of mandamus should issue to the Attorney General requiring that she seek pre-ballot review of Mr. Eyman's Sound Transit initiative, I-824, and any other initiatives that are arguably unconstitutional or outside the scope of the initiative power.

            Respectfully submitted this 4^th day of March, 2003.

 

 

                                                                                                            Widell | appellate

                                                                                                           

 

 

                                                                                          By__________________

                                                                                                            John Widell

                                                                                                            WSB No.18678

                                                                        Attorney for Petitioner