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   ATTORNEY GENERAL'S MEMORANDUM IN RESPONSE TO PETITION TO AMEND BALLOT TITLE AND SUMMARY, AND IN SUPPORT OF COUNTERCLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF

 

I.               NATURE OF THE CASE

            This is a special statutory proceeding to review the ballot title furnished by the Attorney General under RCW 29.79.040 for proposed Initiative Measure 831 (I-831).  Petitioner objects to language in the title and summary and proposes amendments.  A true copy of I-831 is Attachment A to this brief.  A true copy of the ballot title and summary formulated by the Attorney General is Attachment B.

                  This appeal was filed by the Petitioner on February 5, 2003.  It was filed timely and served on the Secretary of State and on the Attorney General.  By way of Answer and Counterclaim, the Attorney General asserts that (1) if I-831 is to be processed as an initiative, the ballot title and ballot measure summary drafted by the Attorney General should be upheld; but (2) as shown by its text, I-831 is not legislative in nature, is beyond the constitutional power of the initiative, and should not be placed on the ballot, even if it draws the constitutionally requisite number of petition signatures. [1]

II.             STATUTORY FRAMEWORK AND STANDARDS

            The Attorney General is responsible for formulating a ballot title and summary for each initiative measure received from the Secretary of State's office.  RCW 29.79.040.  Under these statutes, as recently amended, the ballot title consists of (a) a statement of the subject of the measure; (b) a concise description of the measure; and (c) a question whether the measure should be enacted into law.  RCW 29.79.035 (Laws of 2000, ch. 197, € 1).  The concise description is to be a "true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure."  Id. [2]

III.           JUDICIAL REVIEW STANDARDS

            By implication, the standards that the Attorney General is to satisfy in formulating a ballot title are the standards against which the title should be reviewed on appeal.  The Attorney General's formulation should stand unless it fails to meet those standards.  By the same token, proposed amendments should be considered only if the Attorney General's proposal is determined to be statutorily deficient.

 

IV.           ARGUMENT

A.             If Initiative Measure 831 Deserves A Title And Summary At All, The Attorney General Has Drafted The Appropriate Title And Summary.

 

            Initiative Measure No. 831 is not in the form of a legislative bill, but in the form of a resolution.  The resolution consists of five "whereas" clauses making various factual assertions about Tim Eyman, a Washington citizen who has sponsored several initiative measures in recent years.  After the "whereas" clauses, I-831 includes two "be it resolved" clauses:

            NOW, THEREFORE, BE IT RESOLVED, That the citizens of the State of Washington do hereby proclaim that Tim Eyman is a Horse's Ass.

 

            BE IT FURTHER RESOLVED, That copies of this resolution be immediately transmitted to Tim Eyman, his wife, and his mother.  So there.

 

            As noted above, the ballot title for an initiative consists of a statement of the subject of the measure, a concise description of the measure, and a question in a form set forth in the statute.  RCW 29.79.035 provides:

For an initiative to the people, or for an initiative to the legislature for which the legislature has not proposed an alternative, the ballot title must be displayed on the ballot substantially as follows:

 

Initiative Measure No. ___ concerns (statement of subject).  This measure would (concise description).  Should this measure be enacted into law?

 

The statement of the subject is to be "sufficiently broad to reflect the subject of the measure, sufficiently precise to give notice of the measure's subject matter, and not exceed ten words."  Id.  The concise description, limited to thirty words, is to be a "true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure."

            Confronted with the unusual contents of I-831, the Attorney General drafted the following "statement of the subject" for this measure:

[Initiative Measure 831 concerns] adoption and transmittal of a resolution about a named individual. [3]

 

Likewise, the Attorney General drafted the following "concise description" of the measure:

[This measure would] set forth "whereas" recitals negatively characterizing a citizen and initiatives he sponsored, followed by a resolution describing him with a disparaging term that denotes a self-important, silly or stupid person. [4]

 

            The statute also requires the Attorney General to draft a 75-word ballot measure summary.  RCW 29.79.040.  The Attorney General's summary (which would appear on the petitions for the measure but not, unlike the ballot title, in the voters pamphlet or on the ballotÑsee RCW 29.79.070) summarizes the measure in slightly more explicit terms, mentioning Mr. Eyman's name, but describing the nature of the label I‑831 would attach to Mr. Eyman, rather than directly repeating it.

            The Attorney General's "statement of the subject" accurately reflects that I-831 concerns "adoption and transmittal of a resolution about a named individual."  This is entirely
accurate.  By the same token, the Attorney General's concise description describes the contents of I-831, carefully choosing terms that (1) accurately characterize the language of the measure, (2) clearly identify the proposition so that it would not be confused with some other proposition on the ballot, and (3) avoid the use of offensive or prejudicial language.  The ballot measure summary accurately reflects the contents of the measure in measured, impartial, language while still giving the voters notice of the nature of the measure's content. 

            The Petitioner, the sponsor of I-831, objects that (1) the Attorney General's ballot title is not sufficiently precise, and (2) the ballot title and summary somehow "censor" the content of I‑831 because they do not adopt its crude phraseology.

            The purpose of a ballot title is not to substitute for reading the text of a measure but to advise the voters of the subject matter of the measure and to describe its contents to a sufficient degree that they (1) will not confuse this measure with others on the ballot and (2) are on general notice what the measure contains so they can read it and decide whether or not to support it.  The courts have stated that a ballot title only needs to consist of "a few well-chosen words, suggesting the general subject stated".  Wash. Fed. State Employees v. State, 127 Wn.2d 544, 554, 901 P.2d 1028 (1995) (citations omitted).  A title "complies with the constitution if it gives notice that would lead to an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law."  Id. at 555 (quoting YMCA v. State, 62 Wn.2d 504, 506, 383 P.2d 497 (1963). 

            The Attorney General's ballot title and summary for I-831 amply serve these purposes.  They inform the voters (and potential petition-signers) of the subject of the act.  They describe its contents, in impartial but accurate language, and lead inquiring minds to read the actual text of the measure.  Each petition is required to contain, on its reverse side, a "full, true, and correct copy of the proposed measure."  RCW 29.79.080.  Thus, any person asked to sign one of the petitions will have ready access to the measure's text.  Likewise, if a measure qualifies for the ballot, its full text appears in the Voters Pamphlet along with the ballot title.  RCW 29.81.250(2), (10). 

            The Petitioner's primary objection to the Attorney General's title and summary appears to be that they do not use the phrase "horse's ass" as used in the measure's text, nor do they directly quote from the "whereas" portions of I-831 but describe the nature of the content.  In essence, the Petitioner argues that since his measure uses crude language, the Attorney General has a duty to use crude language to describe it.  Anything else, he suggests, amounts to "censorship."  Pet. at 5-6. 

            Petitioner's citations to various "free speech" cases are wholly irrelevant to this case.  The Attorney General is not seeking to change or censor the text of I-831, or to bar its sponsors from saying whatever they like in the public forum.  However, it does not follow from the First Amendment that a citizen, merely by including offensive language in the text of a proposed initiative, may commandeer the machinery of the state electoral process and compel the state to use the same crude phrases in officially prepared material describing the contents of the measure.  So long as the ballot title and summary serve their statutory and constitutional purposes, the Attorney General may legitimately choose to use nonoffensive language. 

            Adopting the Petitioner's rationale could lead to very unfortunate precedent for other ballot measures.  While the target of I-831 is a public figure whose activities might arguably be a legitimate subject of public debate, any citizen could file an initiative in the same form attaching a coarse, derogatory, insulting (and possibly defamatory) description to another citizen (perhaps one who is not a public figure) and, by the mere expedient of filing an initiative petition, force the state to reflect the particulars of the measure in officially drafted ballot titles and other state material. 

            The Attorney General's title and description are accurate and are not prejudicial.  The phrases used in I-831 do "negatively characterize" Mr. Eyman, and the term "horse's ass" is undeniably disparaging. [5]   Indeed, the obvious purpose of the measure is to rebuke Mr. Eyman and "send a message" that the voters disapprove of his conduct, and the specific term used is not necessary to understand the scope and purpose of the resolution. 

            As noted earlier, the alternative ballot title and concise description included in the Petition, and in the Petitioner's proposed order, are themselves out of compliance with the statutory requirements and, therefore, must be rejected.  If this matter is allowed to proceed as an "article II, section 1" initiative at all (see discussion below), the Attorney General's ballot title and ballot measure summary should be upheld.

B.             Initiative 831 Is Not A "Bill Or Act" And, Therefore, Does Not Qualify As An Initiative Under Article II, Section 1, Of The Constitution.

 

            The Washington Constitution reserves to the people "the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature".  Const., art. II, € 1.  A "law" is generally standard of conduct which must be obeyed and followed by citizens, subject to sanctions or legal consequences.  Black's Law Dictionary 1028 (4^th rev. ed. 1968).  A "bill" in this context is merely a proposed law, the name given to a law before its enactment.  Id., at 209.  Each bill enacted by the legislature, then, changes the body of legal conduct standards imposed upon the citizens of the state (or on others falling with the jurisdiction of the state), by adding, removing, or modifying the rights, duties, and/or responsibilities of some person or class. [6]  

            In the past, the Attorney General followed a practice of declining to furnish a ballot title to proposed measures which were not legislative in nature and, therefore, did not meet the "bill or law" requirements of article II, section 1.  Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P. 389 (1996), cert. denied, 519 U.S. 862, arose from litigation started by the proponent of a measure when the Attorney General took the position that the measure was not state legislation and, therefore, should not be given a ballot title.  The Supreme Court concluded, first, that the Attorney General acted incorrectly in declining to furnish a title because furnishing the ballot title was a ministerial duty.  Philadelphia II, discussion at 714-15.  However, the Court added the following discussion:

            This does not leave the Attorney General without recourse to prevent an initiative from reaching the ballot.  If the Attorney General believes an initiative exceeds the scope of the initiative power, she should prepare the ballot title and summary in accordance with her statutory duty and then seek an injunction to prevent the measure from being placed on the ballot.

 

Id. at 716-17 (citations omitted).  The Supreme Court went on to hold that the measure before it was in fact beyond the scope of the initiative power, because its object was to establish an initiative power at the federal level and this could not be accomplished through changes in state law.  Id. [7]

            Initiative Measure 831 establishes no new standard of legal conduct.  It adds to no citizen's rights, duties, or responsibilities.  It would not and could not logically be codified as a part of Initiative Measure 831 establishes no new standard of legal conduct.  It adds to no citizen's rights, state law.  I-831 is not a bill or law, but a resolution, much like those adopted from time to time by civic and social organizations, as well as by some legislative bodies.  Indeed, I‑831's text is an obvious parody of resolutions adopted from time to time by organizations for the purpose of conferring special honor or recognition on a citizen or group, typically those who have performed heroic acts or performed special services.  In such cases, the purpose of the resolution is not to enact a law but to express a sentiment or convey a message.

            The Attorney General does not for a moment question Petitioner's right to say whatever he may lawfully say about Tim Eyman, or to print his thoughts on petitions and solicit signatures on the petitions. [8]   It does not follow, however, that the Petitioner may arrange his resolution in the outward form of an initiative to the people and, so doing, gain the right to use of the initiative machinery and process or to have his resolution voted on by the general electorate next November.  The initiative power does not extend to resolutions, expressions of sentiments (positive or negative, honoring or ridiculing), or "messages" to be delivered. 

            The power of the initiative is a solemn, constitutional, legislative power.  It amounts to the power to enact laws that govern the conduct of our affairs.  Allowing its use for resolutions and mere "expressions of sentiment" blurs and obscures this solemn purpose, and threatens to spark continuing confusion between ballot propositions that "send a message" and those that actually change the law.  Even if the legislature could potentially authorize the use of the state's election machinery for "straw votes" on all sorts of interesting public expressions, it has not done so.  While the sponsors of I-831 may have a right to express their sentiments and solicit the views of their fellow citizens on that score, they do not have a right to place I-831 on the ballot for approval or rejection as an initiative measure. 

V.             CONCLUSION

            For the reasons stated above, the Court should dismiss the petition herein and should affirm the ballot title and summary for Initiative 831 as formulated by the Attorney General.  The court should also declare Initiative Measure 831 is beyond the scope of the initiative power as set forth in the constitution, and should enjoin the Petitioner from seeking to qualify the measure for the ballot.

            Respectfully submitted this 7th day of February, 2003.

 

                                                                                                                              CHRISTINE O. GREGOIRE

                                                                                                                              Attorney General

 

 

 

                                                                                                                              JAMES K. PHARRIS, WSBA #5313

                                                                                                                              Senior Assistant Attorney General

                                                                                                                              PO Box 40100

                                                                                                                              Olympia, WA  98504-0100

                                                                                                                              (360) 664-3027