STATE OF WASHINGTON

THURSTON COUNTY SUPERIOR COURT

DAVID GOLDSTEIN,

Petitioner,

CHRISTINE GREGOIRE, in her official capacity as Attorney General of the State of Washington,

Respondent.

NO. 03-2-00221-3

ATTORNEY GENERAL'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF

I. NATURE OF THE CASE

This case was initiated by Petitioner David Goldstein as an appeal from the ballot title and ballot measure summary prepared by the Defendant Attorney General for proposed Initiative Measure No. 831 (I-831). In response to the Petition, the Attorney General filed a memorandum defending the ballot title prepared for I-831, and also filed a counterclaim asserting that I-831 is not in the form of a "bill or act" as required by article II, section 1, of the state constitution and is, therefore, beyond the scope of the initiative powers reserved by the people in the constitution.

On February 13, 2002, the Court conducted a hearing on the ballot title petition and issued an Order modifying the ballot title and ballot measure summary for proposed Initiative 831. The Court deferred ruling on the issues raised in the Attorney General's counterclaim, and requested additional briefing on certain constitutional issues raised by the Court. This Supplemental Memorandum responds to the Court's request.

II. SUMMARY OF ARGUMENT

The Attorney General contends that Initiative Measure 831, which is in the form of a resolution and contains no new or amendatory statutory law, is beyond the scope of the initiative power reserved by the people in article II, section 1 of the constitution, and should therefore be excluded from the ballot. On the issues where the Court requested additional briefing, the Attorney General's research indicates that I-831 is probably neither (1) a bill of attainder prohibited by article I, section 23 of the constitution nor (2) a special bill prohibited by article II, section 28. However, the Attorney General's position is that since both of these issues relate to the substance of the initiative rather than to its form, the Court should defer ruling on these issues unless I-831 is actually adopted and gives rise to a case or controversy.

III. ARGUMENT

A. Initiative No. 831 Is Not A "Bill Or Act."

On or about February 7, 2003, the Attorney General filed a memorandum which in part responded to Petitioner Goldstein's ballot title appeal, and in part set forth the reasons why proposed Initiative Measure No. 831 is beyond the scope of the initiative power and should be excluded from the ballot. The points raised in that memorandum will not be repeated here.

However, the February 7th memorandum was drafted in haste, with little time for thorough research. Subsequently, the Attorney General discovered the following additional case authority, which might assist the Court in determining (1) whether it is appropriate to consider at this time whether the proposed measure is or is not within the constitutional power of initiative, and (2) whether this particular measure meets the constitutional standard:

As noted in the February 7th memorandum, the leading supreme court authority in this area is Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996), cert. denied, 519 U.S. 862, in which the state supreme court excluded from the ballot a measure which, while purporting to amend state law in a formal sense, consisted entirely of proposed changes to federal law. The Philadelphia II Court did reach the question, however, distinguishing between (1) cases asserting that the substance of a law is inconsistent with the constitution, and (2) cases asserting that a proposed law is beyond the constitutional scope of legislative power. For this proposition, the Court cited Seattle Building and Construction Trades Council v. City of Seattle, 94 Wn.2d 740, 620 P.2d 82 (1980), in which the supreme court excluded a proposed Seattle city measure from the ballot on the ground that it exceeded the local power of initiative by legislating in an area in which the city had no legislative power. The Court noted, first, that "[i]t is the general policy of this court to refrain from inquiring into the validity of a proposed law, including an initiative or referendum, before it has been enacted. Id., at 745 (citations omitted). However, the Court went on to observe that "the courts will take cognizance of certain objections on an initiative measure, and one of these is that the proposed law is beyond the scope of the initiative power. Id. at 746 (citations omitted).

Other jurisdictions appear to follow the same rule, and will exclude a proposed initiative from the ballot if it exceeds the scope of the initiative power. See, e.g., In re Initiative Pet. No. 364, 930 P.2d 186 (Okla. 1996) (excluding from the ballot a proposed initiative purporting to apply for a federal constitutional amendment imposing term limits on members of Congress), and Am. Fed'n of Labor-Congress of Indus. Orgs. v. Eu, 36 Cal. 3d 687, 686 P.2d 609, 206 Cal. Rptr. 89 (1984) (excluding from the ballot a proposed initiative purporting to call for a federal balanced budget amendment).

The measures excluded by the highest courts of Oklahoma and California were, at least, serious attempts to achieve changes in the law, although in both cases (as in Philadelphia II), they were beyond the scope of the initiative power as defined in the states' constitutions. Initiative 831 is not even an attempt to change federal law through the use of the state initiative power. It is not legislation at all, but merely an expression of a point of view about a particular individual. Accordingly, I-831 does not qualify as an initiative measure under article II, section 1, and thus may not appear on the November ballot, even if it gains the constitutionally requisite number of petition signatures.

B. If Initiative 831 Were A "Bill Or Act," It Would Be Premature To Consider Whether This Measure, If Enacted, Would Violate The "Bill Of Attainder" Or "Special Act" Prohibitions Of The State Constitution.

The Court has requested briefing on two constitutional questions relating to the nature of I-831: the constitution's prohibition of "bills of attainder" (art. I, € 23), and the constitution's prohibition of 18 enumerated categories of "special legislation" (art. II, € 28). The Attorney General's position, first, is that since proposed Initiative Measure No. 831 is not a "bill or act" at all, the court does not consider whether the substance of this proposal, if enacted, would contravene some provision of the constitution.

A related point is that the constitutional issues raised by article I, section 23, and by article II, section 28, concern the substantive constitutionality of the initiative (that is, whether the measure, if enacted, would violate the constitution because it would enact law that is substantively inconsistent with the constitution) rather than concerning the scope of the initiative power. As such, these questions are of the type the supreme court has said should not be considered until after a measure's enactment. See, e.g., State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 436 P.2d 786 (1968) (refusing to render opinion as to whether proposed initiative calling for a state constitutional convention would be consistent with constitutional requirements on this subject).

The Attorney General's review of the cases decided under the "bill of attainder" and "special law" provisions of the constitution suggests that I-831 would not fall into either of these two constitutionally prohibited classes of legislation, but that is primarily because I-831 is simply a resolution attaching a label to an individual, and does not purport to affect the legal rights, duties, or status of any person or group.

1. Article I, Section 23: Bills Of Attainder.

Although there are numerous cases discussing the concept of "bill of attainder" as used in article I, section 23, the Attorney General could discover no reported cases in which the state's appellate courts invalidated any specific state statute under this provision. The Supreme Court has stated that the bill of attainder provision was intended to prohibit trials by the legislature, and forbids imposition of punishment by the legislature on specific persons. State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996). The Court of Appeals describes a "bill of attainder" as legislation that applies to named individuals or ascertained members of groups in such a way as to inflict punishment on them without judicial trial. In re Ramsey, 102 Wn. App. 567, 9 P.3d 231 (2000). The key element in these definitions appears to be the infliction of punishment on an individual or group without judicial trial. [1]

While Initiative 831 would single out an individual (Tim Eyman) and attach to him an unflattering label, the text does not specifically declare that Mr. Eyman is a criminal, nor does the measure impose punishment on Mr. Eyman of a criminal nature. [2] At least on its face, then, this measure does not appear to constitute a "bill of attainder."

2. "Special Legislation" Prohibited By Article II, Section 28.

Article II, section 28, of the constitution prohibits the legislation from "enacting any private or special laws" in 18 enumerated categories. [3] The courts have said that a special law is legislation which operates upon a single person or entity, while "general legislation" operates upon all things or people within a given class. See, e.g., CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996), as amended (Jan. 13, 1997). In this sense, if Initiative 831 were legislation (and the Attorney General contends it is not), it would be "special" legislation because it operates solely on a named individual, Tim Eyman.

However, I-831 does not appear to fall within any of the 18 prohibited classes of special legislation. The proposed measure does not purport to actually change Mr. Eyman's name (although it seeks to attach a descriptive phrase to him), or to declare him anyone's heir at law, or to authorize Mr. Eyman to keep a ferry wholly within the state, or to grant him corporate powers and privileges, or to release him from indebtedness. As with article I, section 23 though, it may not be apparent how a proposed measure would operate without seeing how it would apply in a particular factual context. For these reasons, the Attorney General urges the court to refrain from speculating whether I-831, if enacted, would be unconstitutional special legislation. If the measure merits appearing on the ballot at all, the case law calls for deferring consideration of most types of constitutional issues until after the people have had a chance to decide whether they wish to enact the measure.

IV. CONCLUSION

For the reasons stated herein, and in the previous memorandum submitted by the Attorney General, the court should enter an order declaring that Initiative Measure No. 831 is beyond the scope of the initiative power reserved by the people in article II, section 1 of the Washington Constitution, and enjoining the Petitioner from submitting any signed initiative petitions on Initiative Measure No. 831 to the Secretary of State.

Respectfully submitted this 24th 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

[1] Thus, a measure stating that N has committed such and such a crime, and directing that N be fined in a stated amount and imprisoned in the penitentiary for a stated period of time, would be a "classic" bill of attainder.

[2] Whether labeling Mr. Eyman a "horse's ass" is punishment in itself seems at most a factual question which it would be inappropriate to try to address at this time. On its face, I-831 does not purport to deprive Mr. Eyman of life, liberty, or property. However, there is a possibility that in some contexts, even name-calling could be asserted as a form of punishment sufficient to bring article I, section 23 into play. Without a factual context, one can only guess how the law in this area might develop.

[3] Note that "special legislation," in and of itself, is not unconstitutional if the legislation does not fall into any of the enumerated categories. Martin v. Tollefson, 24 Wn.2d 211, 163 P.2d 594 (1945).