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 reply memorandum in support of appeal of ballot title for I-831

 

INTRODUCTION

            In response to the petition in this matter, the Attorney General has filed a counterclaim. The counterclaim is procedurally improper in this action, the sole purpose of which is review of the ballot title and summary. The counterclaim should therefore be dismissed. A revised form of order is submitted with this Reply Memorandum.

The Attorney General has offered no Constitutional or statutory justification for failing to assign an accurate ballot title. Refusing to accurately describe the initiative measure because the Attorney General disagrees with or takes offense at the measure's wording is a flagrant violation of the First Amendment to the United States Constitution. The suggestion that the initiative measure is non-legislative is both incorrect and irrelevant in this action. The Washington Supreme Court has made clear that the attorney general may not refuse to assign an accurate ballot title based on an argument that the measure is unconstitutional. Such concerns must be raised, if at all, in a separate injunction action.

DISCUSSION

A.    No Counterclaim is Permitted in This Proceeding.

The Petition in this case is not a complaint in a civil action. Instead, it is a petition specially authorized by statute. Accordingly, an answer and counterclaim are inappropriate. The sole issue before the court in an action under RCW 29.79.060 is the wording of the ballot title and summary. The statute itself makes this clear, providing:

 

the court shall accord first priority to examining the proposed measure, the ballot title or summary, and the objections to that ballot title or summary, may hear arguments, and shall, within five days, render its decision and file with the secretary of state a certified copy of such ballot title or summary as it determines will meet the requirements of RCW 29.79.040. The decision of the superior court shall be final. Such appeal shall be heard without costs to either party.

The statute does not provide for ordinary litigation. It provides a quick, simple, and cost-free mechanism for a citizen proposing an initiative to obtain review of the Attorney General's ballot title. The short timeframe for a decision, the finality of the decision of the superior court and the lack filing fee or cost award make clear that an RCW 29.79.060 case is not ordinary civil litigation.

The Washington Supreme Court has ruled that the Attorney General has no authority to litigate the constitutionality of an initiative measure as an alternative to assigning a valid ballot title and summary. In Philadelphia II v. Gregoire, 128 Wn. 2d 707, 713 (1996), the Supreme Court held that "the Attorney General does not have discretion to refuse to prepare a ballot title due to the initiative being beyond the scope of Washington's legislative power." The Attorney General is required to comply with RCW 29.79.040 and issue a ballot title without regard to the constitutionality or permissibility of the proposed initiative. "There is simply no indication that the Legislature intended the Attorney General to review the petition for its substance." Id.

The Attorney General's recourse if she believes that a ballot measure goes is outside the scope of the initiative power is to bring a separate action for an injunction. Id. at 715. A separate action for an injunction would be premature, however, before the initiative has been circulated, signed by the requisite number of voters, and enacted by a vote of the people. As the court in Philadelphia II explained,

 

Generally, courts are reluctant to rule on the validity of an initiative before its adoption by the people. This reluctance stems from our desire not to interfere in the electoral process or give advisory opinions.

 

Id. at 716 (citing Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d 82 (1980)).

B.    The Attorney General May Not Censor the Content of a Proposed Initiative.

 

The Attorney General does not dispute that the initiative process is a public forum for First Amendment purposes. Nor does she deny that the sole reason she used language that does not include the expressive content of the initiative is that she views the message as offensive. This is censorship, pure and simple. The result is a confusing title and description that contains neither of the critical expressive elements of the proposed initiative   tha that it relates to Tim Eyman and that and that he should be proclaimed a "horse's ass."

C.   The Attorney General's Claim that I-831 is Not Legislative is Both Incorrect and Procedurally Improper.

 

The Attorney General claims, without statutory or case law support, that a resolution expressing an opinion about an individual is non-legislative. The Attorney General does not cite a constitutional provision that is violated by the proposed initiative. The 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 legislature also routinely provides for censure of individuals. See, e.g., R.C.W. 2.64.010 (censure of judicial officers); R.C.W. 18.83.121 (censure of psychologists); R.C.W. 18.145.120 (censure of court reporters); R.C.W. 18.170.230, etc. 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.

More important for purposes of this proceeding, as explained in Section A above, whether this initiative is outside the scope of the initiative or legislative power is not properly before the court. Such an argument must be made in a separate injunction action, and courts prudentially defer decisions about the legality of a proposed initiative until the initiative has been enacted by the voters.

CONCLUSION

For these reasons, the counterclaim should be dismissed without prejudice and Petitioner's proposed title and summary should be ordered by the court and transmitted to the secretary of state. A revised proposed order is submitted with this memorandum.

            Respectfully submitted this 12^th day of February, 2003.

 

 

                                                                                                            Widell | appellate

                                                                                                           

 

 

                                                                                          By__________________

                                                                                                            John Widell

                                                                                                            WSB No.18678

                                                                        Attorney for Petitioner