NATURE OF ACTION
Appellant David Goldstein a citizen of the State of Washington and the sponsor of the Citizens Initiative to Proclaim that Tim Eyman is a Horse's Ass. Mr. Goldstein files this petition on appeal pursuant to RCW 29.79.060.
RCW 29.79.060, grants "[a]ny person . . . dissatisfied with the ballot title or summary for a state initiative or referendum" the right to "appeal to the superior court of Thurston county by petition setting forth the measure, the ballot title or summary, and their objections to the ballot title or summary and requesting amendment of the ballot title or summary by the court." The statute requires that the court transmit to the secretary of state a ballot title and summary "it determines will meet the requirements of .
Mr. Goldstein is dissatisfied with the title and summary assigned by the Attorney General to the Initiative 831 because, as further explained below, the title and summary do not comply with the requirements of RCW 29.79.035 and 29.79.040. Mr. Goldstein requests that the Court transmit a revised title and summary to the Secretary of State. A form of revised title and summary accompanies this petition.
Initiative 831, sponsored by David Goldstein, provides:
WHEREAS, Tim Eyman's ill-conceived anti-tax initiatives are an irresponsible means of legislating tax policy, an abuse of the initiative process, and an insult to our system of representative democracy; and
WHEREAS, Tim Eyman is an admitted liar, who paid himself $45,000 from campaign funds, while publicly denying any personal gain from the state-wide initiatives he sponsored; and WHEREAS, Tim Eyman diverted $165,000 of campaign contributions to a for-profit corporation he controls, with the intention of paying himself an additional $157,000; and WHEREAS, Motivated by self-aggrandizement and personal gain, Tim Eyman has consistently misrepresented the initiatives he sponsored, and misappropriated funds donated to support them; and WHEREAS, Tim Eyman readily admits, in his own words, that "I just feel like an ass;" 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.
The Attorney General has assigned the following ballot title and summary:
Statement of Subject: Initiative Measure No. 831 concerns adoption and transmittal of a resolution about a named individual.
Concise Description: 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.
Should this measure be enacted into law? Yes [ ] No [ ]
BALLOT MEASURE SUMMARY
This measure is in the form of a resolution. It would make several "whereas" declarations concerning an individual (Tim Eyman) and the initiatives he has sponsored. It would declare that the individual should be given a label using a disparaging term that denotes a self-important, silly, or stupid person. The measure would direct that copies of the resolution be transmitted to the named individual, his wife, and his mother.
PETITIONER'S PROPOSED TITLE
Petitioner David Goldstein proposes the following Title and Summary
Statement of Subject:
Initiative 831 would proclaim Tim Eyman a horse's ass.
If enacted by the people of the State of Washington, it would proclaim by 176-word resolution, that Tim Eyman is a horse's ass, for reasons which are stated in the whereas clauses.
BALLOT MEASURE SUMMARY
This measure states in whereas clauses that Tim Eyman has sponsored irresponsible tax initiatives, diverted money from initiative campaigns to himself and his corporation, and admitted "I just feel like an ass." The measure contains a resolution that "Tim Eyman is a horse's ass" and calls for transmittal of the resolution to Mr. Eyman, his wife, and his mother.
THE ATTORNEY GENERAL'S
RCW 29.79.040, provides:
Within five days after the receipt of an initiative or referendum the attorney general shall formulate the ballot title, or portion of the ballot title that the legislature has not provided, required by and a summary of the measure, not to exceed seventy-five words, and transmit the serial number for the measure, complete ballot title, and summary to the secretary of state. . . .
RCW 29.79.035 provides:
(1) The ballot title for an initiative to the people, an initiative to the legislature, a referendum bill, or a referendum measure consists of: (a) A statement of the subject of the measure; (b) a concise description of the measure; and (c) a question in the form prescribed in this section for the ballot measure in question. The statement of the subject of a measure must 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. The concise description must contain no more than thirty words, 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. . . .
The Attorney General's statement of subject exceeds ten words. In addition, the statement is not precise enough to give notice of the measure's subject. The statement does not identify Mr. Eyman. Nor does it state that the resolution is to declare Mr. Eyman a horse's ass. The appropriate statement of subject is obvious. This is "a resolution declaring Tim Eyman a horse's ass." Any other statement of subject editorializes on the content or advisability of the measure. Such editorializing is prohibited by both RCW 29.79.035 and the First Amendment.
The Supreme Court has repeatedly made clear that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." See, e.g., Texas v. Johnson, 491 U.S. 397 (1989), ; ; ; (plurality opinion); ; ; ; .
The Attorney General's recasting of Mr. Goldstein's simple initiative from an initiative to "Declare That Tim Eyman is a Horse's Ass" to an initiative concerning "adoption and transmittal of a resolution about a named individual" removes the expressive content. The only conceivable explanation is that the Attorney General is offended by the language of the initiative and is acting as a censor in violation of the First Amendment. RCW 29.79.035 does not condone censorship and provides the Attorney General with no censorship authority. On the contrary, RCW 29.79.035 requires the Attorney General to provide "impartial description of the measure's essential contents" and expressly prohibits the Attorney General from attempting to "create prejudice either for or against the measure."
The Attorney General's concise description also exceeds the statutorily mandated number of words. More important, both the concise description and the summary censor the expressive content of Mr. Goldstein's proposed initiative. Rather than simply state that the initiative would declare Mr. Eyman a "horse's ass," the Attorney General uses the phrase a "a disparaging term that denotes a self-important, silly or stupid person." In addition, by describing the initiative as "negatively characterizing" and "disparaging" Mr. Eyman, the Attorney General improperly takes a position on the measure. Whether the measure is "negative" and "disparaging," as the Attorney General's language suggests, or accurate and appropriate, as Mr. Goldstein believes, will be for the voters of the State of Washington to decide.
CONCLUSION AND PROPOSED ORDER
For these reasons, the court should transmit a revised ballot title and summary to the Secretary of State. A proposed form of order accompanies this petition.
Respectfully submitted this ____day of February, 2003.
WIDELL | APPELLATE
WSB No. 18678
Attorney for Petitioner