(dissenting) — By judicial fiat the majority and concurrence virtually eliminate the people’s constitutional right to referendum by leaving it to the tender mercies of the Legislature. I would rather heed the warning of Chief Justice Marshall, "We must never forget that it is a Constitution we are expounding,”21 by applying the original text as written:
*822Article II
Legislative Department
§ 1. Legislative Powers, Where Vested.
The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.
(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions ....
(c) No act, law, or bill subject to referendum shall take effect until ninety days after the adjournment of the session at which it was enacted ....
Const, art. II, § 1 (amend. 7) (emphasis added).22
The issue is whether the Stadium Act (attached verbatim in App. A), which imposes taxes to possibly build a stadium, is necessary for the immediate preservation of the public peace, health, or safety. The majority claims it is. Let us test that claim against the constitution itself.
A few important facts
The facts are straightforward. In 1995 the Legislature authorized King County to impose a sales tax by local *823ordinance to pay for a baseball stadium. The taxing ordinance was put to county referendum but was rejected at the polls by voters in the very county where the stadium was to be located. The Governor immediately called the Legislature into special session for the sole purpose of enacting a tax which could be used to fund a stadium of similar design. The Stadium Act23 authorizes a combination of state and local taxes to raise an additional $314 million. In legal effect, the Act authorizes and imposes several taxes but does nothing to mandate construction of a stadium or keep a baseball team. Since the statute was passed as an alleged "emergency,” it became effective immediately. However, the Act says that the taxes may not be imposed prior to January 1; whereas, if not for the emergency clause, the taxes could have been imposed on January 15, i.e., 90 days from the end of the special session.
While the Stadium Act generally authorizes new and/or higher state and local taxation to begin on January 1, 1996, and also generally provides that the taxes so collected shall be dedicated to a stadium purpose, these taxes will continue to be collected until at least June 30, 1997, whether or not the stadium is ever constructed and whether or not there is a team to play in it.
However, assuming no stadium is built and no baseball team remains or is secured, there is no provision whatsoever in the enactment to refund to the taxpayers those enhanced taxes collected between January 1, 1996 and June 30,1997. The government may well claim that under such a scenario it is entitled to retain the revenue collected for stadium purposes in its general fund to be expended for other purposes rather than refunding the same plus interest back to the taxpayers.
The Act provides that after June 30, 1997 the major league team must agree to "share . . . profits” (§ 201(4)(c)). However, this is illusory because it does not set the share nor does it apply if there are none.
*824The Stadium Act does not tell us why passage of the Act is necessary for the "immediate preservation of the public peace, health or safety.” It contains no legislative declarations of fact whatsoever, although at its end it does contain a so-called emergency clause identical, word for word, to the constitutional provision:
This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.
Laws of 1995, 3d Spec. Sess., ch. 1, § 310. The reason why this Act is emergently necessary is left to the imagination.
The statute immediately took effect on October 17. But a citizens’ group promptly requested the Secretary of State to begin the referendum process by accepting for filing its typewritten copy of the Stadium Act (the proposed subject of referendum) accompanied by its filing fee. See RCW 29.79.010, RCW 43.07.120.
Our state constitution reserves for the people the right to put any statute passed by the Legislature to popular referendum—with one narrow exception: a statute is not subject to referendum if it is "necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” Const, art. II, § 1(b) (amend. 7). The Secretary of State leaped into the breech of that narrow exception and refused to process the referendum. Hence, this suit followed.
Purpose of emergency exception to referendum power
The threshold issue is whether the Stadium Act is "necessary for the immediate preservation of the public peace, health or safety.” Const, art. II, § 1(b) (amend. 7). If so, the Secretary of State properly refused the referendum filing. If not, we must order the Secretary to follow the mandatory constitutional process.
Usually emergency clauses are added to make enact-*825merits effective immediately to avoid the normal 90-day waiting period before an act otherwise takes effect. See State v. Hayes, 108 Wn.2d 344, 345-46, 738 P.2d 276 (1987); Const, art. II, § 1(c) (amend. 7). However, this emergency clause appears to have been added solely to avoid a possible referendum, not to substantially speed the effective date of the legislation. Indeed, the State’s brief argues that it is the risk of delay "incidental to a submission of [the] measure to a popular vote” that renders the Act emergent. Br. of Resp’ts State of Washington at 36.
The Act judged against constitutional standard
This constitutional exception to the popular right of referendum on its face conditions the exception by imposing three mandatory requirements: (1) the necessity must be immediate; (2) the statute must be necessary to solve the problem; and (3) the problem must be of a particular kind, i.e., a disruption of the "public peace,” "health,” or "safety.” However, this Act satisfies none of the mandatory criteria. Collection of the tax is not so immediate that the ordinary 90-day delay in the effective date of the statute matters. The majority admits the date the tax becomes effective is "really insignificant.” Majority at 811. Nor does this statute preserve the "public peace,” "health,” or "safety” in any sense other than Orwellian. Further, even if we were to assume that the purpose of the Act is to finance a stadium on an emergent basis, the Act would still not otherwise qualify for referendum exception because the Act in no way legally obligates anyone to build a stadium, nor does it lawfully require such a stadium to be built, nor does it lawfully require a professional team to remain to play in it.
Although not in the record, if it were necessary to pass the Act for some reason prior to October 30 (see Majority at 812-13), the Legislature accomplished that by special session. However that is certainly not justification under the constitution for an emergency clause which is wholly a different issue. Common sense interpretation is not and *826should not be foreign to judicial decision-making. In fact, this court has always said the first rule of constitutional construction is "We will presume the language carries its ordinary and popular meaning . . . .” Westerman v. Cary, 125 Wn.2d 277, 288, 892 P.2d 1067 (1994); see Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 (1984). We have also held constitutional clauses such as the referendum power must be read "as the average informed lay voter would read it” because the State Constitution and all subsequent amendments were ratified by popular vote, not by the Legislature alone.24 Washington State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674, 763 P.2d 442 (1988) (quoting Estate of Turner v. Department of Revenue, 106 Wn.2d 649, 654, 724 P.2d 1013 (1986)).
The role of referendum in our system
Article II of our constitution allocates legislative power between the people and the Legislature. The very first sentence of article II, section 1, expressly states that, while generally the legislative power is vested in the Legislature, "the people reserve to themselves” the power of referendum. This reservation goes to the heart of our system and reflects the constitutional mandate that "All political power is inherent in the people, and governments derive their just powers from the consent of the governed” (Const, art. I, § 1), while also reflecting the fact that the *827state constitution is most importantly a limitation on the power of the state Legislature. In re Elliott, 74 Wn.2d 600, 604, 446 P.2d 347 (1968).25 By the constitutional text the people’s power of referendum is superior to and antagonistic to the normal prerogatives of the Legislature. This court has characterized the popular right of initiative and referendum as "the first of all the sovereign rights of the citizen—the right to speak ultimately and finally in matters of political concern . . . .” State ex rel. Mullen v. Howell, 107 Wash. 167, 171, 181 P. 920 (1919). Appointing the Legislature to guard the people’s right to refer legislation to referendum is appointing the fox to guard the hen-house.
The power of referendum was added by the seventh amendment to our state constitution in 1912. This referendum power created a sort of fourth branch of government whereby the "people reserv[e] the right to assert its will over the legislative department of the government.” State ex rel. Brislawn v. Meath, 84 Wash. 302, 318, 147 P. 11 (1915). The question before us is not a question involving the separation of judicial from legislative power but the separation of the power of the people from legislative encroachment.
As the Court of Appeals observed in 1993, the people passed the seventh amendment "because they had become impressed with a profound conviction that the legislature had ceased to be responsive to the popular will.” Save Our State Park v. Hordyk, 71 Wn. App. 84, 89, 856 P.2d 734 (1993) (citing State ex rel. Mullen v. Howell, 107 Wash. 167, 172 (1919)). An early Washingtonian noted that the referendum’s purpose is to "democratize legislation, to enable people to assume control of affairs, and to insure *828responsible as well as responsive government . . . .”26 We have also held that by enacting the seventh amendment, the people "fixed a limit beyond which the legislature cannot go without doing violence to the will and voice of the people.” State ex rel. Gray v. Martin, 29 Wn.2d 799, 804, 189 P.2d 637 (1948).
Judicial review of emergency clauses liberally prefers referendum
The majority claims: "The dissent would have us sweep aside the declaration of emergency, apparently believing that this court should substitute its judgment on that score for that of the Legislature.” Majority at 813. Apparently the majority believes the Legislature should be free to act without independent judicial review of the constitutionality of its actions. This is an interesting debating point, however, it was rejected in the Federalist Papers27 and *829again in Marbury v. Madison.28
To the contrary, since the popular ratification of the referendum amendment, our courts have repeatedly considered suits brought by citizens claiming that various legislative acts should face a referendum despite dubious legislative claims that the law was necessary to remedy some alleged emergency. Over the years our court has enforced a "delicate balance” between preserving the people’s right to referendum while allowing the Legislature to pass immediately effective laws in response to true emergencies. State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 777, 380 P.2d 735 (1963). To aid this inquiry, we have adopted and followed a set of judge-made rules. The *830purpose of these rules is to aid enforcement of the constitution; it certainly is not to defeat it.
As a preliminary matter, this court has always held that it is our solemn constitutional duty to substantively review legislative declarations of emergency as a judicial question. Id. at 777 (emphasis added).29 We have held that to allow the Legislature to define emergency without review "is to write this reservation out of the Constitution.” State ex rel. Brislawn v. Meath, 84 Wash. 302, 311, 147 P. 11 (1915).
Additionally, we have held that the referendum and initiative clauses should be "liberally construed” to favor upholding the people’s right to referendum and initiative. Sudduth v. Chapman, 88 Wn.2d 247, 251, 558 P.2d 806, 559 P.2d 1351 (1977); State ex rel. Howell v. Superior Court, 97 Wash. 569, 577, 166 P. 1126 (1917); State ex rel. Case v. Superior Court, 81 Wash. 623, 632, 143 P. 461 (1914). But this is precisely opposite from what the majority does here.
"Public peace, health or safety” much narrower than general police power
The majority’s basic fallacy is its assertion that "public peace, health or safety” means the same as anything the Legislature is authorized to do under its broad police power. Majority at 805.
The question of whether an act is "necessary for the immediate preservation of public peace, health or safety” is often expressed in shorthand as whether the Act is an "emergency.” Common sense dictates that a tax, much less a stadium, is not an "emergency,” at least in the sense of being "necessary for the immediate preservation of the public peace, health or safety, [or] support of the state government and its existing public institutions.” Even the *831majority admits that "losing a major league baseball franchise cannot be said to be an emergency of apocalyptic dimensions.” Majority at 809. Moreover, this Act does not legally prohibit that loss in any event.
The test as to whether or not a statute is within the police power is much broader than the test as to whether the statute fits within the narrow exception of the referendum clause. If the question of "whether the statute falls within the police power” were the same as "whether or not the statute is subject to referendum,” we would never have a referendum to consider since, as a general matter, the state may not constitutionally legislate beyond its police power in any event. Washington Kelpers Ass’n v. State, 81 Wn.2d 410, 502 P.2d 1170 (1972), cert. denied, 411 U.S. 982, 93 S. Ct. 2274, 36 L. Ed. 2d 959 (1973).
Contrary to the majority’s claim, we have consistently held that the emergency exception is much narrower than the police power. For example, in State ex rel. Case v. Howell we explained,
the [emergency] exception does not extend to all things touching the general welfare. It does not extend to things relating to mere public expediency or public convenience. It is not as broad as the police power, which is so broad and so variant with time and circumstance that its limits cannot he defined.[30]
Howell, 85 Wash. at 285.
State ex rel. Robinson v. Reeves, 17 Wn.2d 210, 135 P.2d 75, 146 A.L.R. 280 (1943) struck down the emergency clause in a statute that was passed to purchase several large utility companies. There we explained "’[promotion of the public welfare’ is not a criterion by which we may be guided in determining whether or not an emergency exists which defeats the right to refer the Act to the *832people—this, very simply, because it is not a criterion set up in § 1(b) of the seventh amendment.” Id. at 217. Instead, the court "[r]evert[ed] to the constitutional provision” and required that the law go directly to the immediate preservation of the public peace, health, or safety. Id. at 215, 216.31 And, indeed, acquiring public utilities is more akin to the proper role of government than imposing a tax to perhaps build a baseball stadium32 by what appellants characterize as "the confiscation of property to assist private corporations or enterprises,” (quoting Journal of the Washington State Constitutional Convention 1889 at 682 (B. Rosenow ed. 1962) (quoting J. Z. Moore)). Appellants Am. Br. at 20.33
We have held "[p]eace, health and safety .... refer to perils which may beset the state or its citizens. ...” State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 274, 148 P. 28 (1915). In 1945, State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 681, 157 P.2d 721 explained the intended scope of the emergency exception:
During a legislative session, it might appear that legislation was immediately required to avert immediate danger to the public peace. An epidemic of vast proportions might be threatening the public health, or some great catastrophe might require immediate relief. The amendment, wisely and indeed necessarily, guarded against such contingencies ....
The true definition of the phrase "necessary for the immediate preservation of the public peace, health or safety,” to which we have long adhered, is its ordinary, obvi*833ous one. I cannot stretch the ordinary meaning of these words far enough to honestly conclude that this tax is truly necessary for the immediate preservation of the public peace, for the immediate preservation of public safety, or for the preservation of public health. The constitutional exception to referendum is not so infinitely broad that this Act and almost everything else will fit within it.
Emergency clause suspect when standing alone
A secondary consideration is what proof the court will consider to determine whether an emergency of the kind set forth in the constitution in fact exists.
The concurrence states: "Our constitution in article II, section 1, empowers the Legislature to declare legislation necessary for the support of the state government and its existing public institutions or for the preservation of public peace, health or safety.” Concurrence at 815 (emphasis added). If the constitutional text empowers the "Legislature to declare” anything, it would take a vigilant jurist to find it since it must be written in invisible ink.
Nearly 1,000 statutes on the books have boilerplate emergency clauses. I strongly disagree with the majority’s "safety in numbers” or "floodgates” argument which essentially claims that if we were to protect our citizens’ right to referendum we could do nothing else and, therefore, we shouldn’t do anything. Majority at 813 n.12. We must be clear that our courts are open to hear these claims in discharge of our paramount duty to protect the constitutional rights of the people. The fact that the people’s rights are being violated en masse is an even greater reason for judicial intervention than invasion by occasional inadvertent mistake.
Moreover, these claims are not heard "de novo” in the supreme court. They originate in the superior court and reach the supreme court only by discretionary review. If there is a great deal of litigation over this matter, we have only ourselves to blame for not articulating the simple and mandatory rule that, in effect, the constitution *834means exactly what it says and that any legislative enactment which simply relies upon a boilerplate emergency clause, without also meeting the exacting constitutional criteria, is subject to attack. Repetition of this legislative conduct has been encouraged by the unwillingness of this court to discharge its constitutional duty. Frankly, I find the majority’s argument on this point untenable.
Accordingly, this court has always looked with disfavor on the Legislature’s "custom of attaching emergency clauses to all sorts of bills, many of which cannot by any stretch of the imagination be regarded as actually emergent. . . .” State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 683, 157 P.2d 721 (1945). Once again our Court of Appeals persuasively observed "[presumably to escape public scrutiny and the referendum process, the Legislature had begun to insert 'emergency clauses’ in a number of bills.” Save Our State Park v. Hordyk, 71 Wn. App. 84, 90 n.6, 856 P.2d 734 (1993).34
When faced with an emergency clause, the court must independently determine whether an emergency actually exists and whether the challenged statute actually addresses it. State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 679-81, 157 P.2d 721 (1945). "Unless we can say that the act is, in fact, necessary for the immediate preservation of the public peace, or for the immediate preservation of the public health, or for the support of the state government and its existing public institutions, the relators are of right entitled to the writ prayed for.” Id. at 682. This is the essence of judicial review which is the constitutional responsibility of this court. Const, art. IV.
Facts which may he considered
To exempt an act from a possible referendum, the existence of a true emergency of a particular kind must be factually proven. The burden should be on the one who asserts that the exemption is applicable since the constitu-
*835tional rule is clearly otherwise, and we presume that the act is subject to referendum unless the contrary is clearly proven. Humiston, 61 Wn.2d at 776.35 The court often gleans these "facts” from "what appears upon the face of the act, aided by the court’s judicial knowledge.” State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 778, 380 P.2d 735 (1963) (quoting State ex rel. Hoppe v. Meyers, 58 Wn.2d 320, 326, 363 P.2d 121 (1961)). When the Legislature includes a statement of fact in the statute upon which it bases its declaration of emergency, the court will generally give such factual finding considerable deference. "We have always held to the rule that the legislative declaration of the facts constituting the emergency is conclusive, unless, giving eifect to every presumption in its favor, the court can say that such legislative declaration, on its face, is obviously false and a palpable attempt at dissimulation.” State ex rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933) (emphasis added).
In State ex rel. Hamilton v. Martin, the Legislature passed a law appropriating money to alleviate statewide unemployment. Id. at 253-54. There the Legislature included an emergency clause. Id. at 252. However, the Legislature also stated specific facts supporting a state of emergency including " 'Discontent, social unrest and incipient insurrection exist. Acts of insurrection are occurring.’ ” Id. at 256-57 (quoting Laws op 1933, ch. 65, § 1, referred to as the "Bond Act”). Further, the court in that case was able to take judicial notice36 of the widespread hunger and privation existing in 1933 which will, if *836"unrelieved, inevitably lead to disorder and reprisal” and found it to be reasonable that the law was designed to "prevent insurrection by civilized methods, rather than by violence and bloodshed.” Id. at 256, 259. Because of the specific facts set out in the law, along with the court’s judicial knowledge, the law was deemed a true emergency of the kind enumerated by the constitution and a referendum was not constitutionally required.
However, this deference is afforded only when the Legislature factually states the nature and scope of the emergency. We have never given the Legislature such deference when all it includes is a naked emergency clause without additional factual support for the alleged underlying emergency itself. In Humiston, one of our most recent cases on the issue, we held, despite the fact that the insertion of an emergency clause was identical to the one used in the Stadium Act, the law there making bingo and card-rooms lawful in certain situations was nevertheless subject to referendum. 61 Wn.2d at 774. We reasoned that "[t]he face of the act is patently devoid of any facts relating to *837an emergency (with the exception of the emergency clause itself).” Id. at 778.
This rule goes back to the very first referendum case we decided. In State ex rel. Brislawn v. Meath, 84 Wash. 302, 305, 147 P. 11 (1915), the issue was whether the Legislature’s insertion of an emergency clause alone, without inclusion of the underlying facts of emergency, would be sufficient to establish an emergency upon review by this court. We began by noting that while the judiciary is hesitant to place restraints upon legislative discretion, the Legislature’s declaration of emergency goes not to legislative discretion, but to its constitutional power—the Legislature may circumvent the people’s right of referendum only if an emergency of a particular kind truly exists. Id. at 314. The court wrote: " 'The said legislative declaration [of emergency] has no greater effect and is no more binding upon the court than if the Legislature had declared that a certain measure is or is not constitutional. In such contingency that question would still remain for the courts to determine.’ ” Id. at 316 (citations omitted).
We have repeatedly adhered to the rule set out in Brislawn. In State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 157 P.2d 721 (1945), the Legislature inserted a boilerplate emergency clause identical to that used in the present case into an act on timber resource use. When a citizen called for a referendum, this court wrote that the Legislature "cannot defeat the constitutional right [to referendum] ... by merely inserting [an emergency clause] . . . .” Id. at 681. The court reasoned that, "It would be scandalous indeed if the constitutional right of referendum could be thwarted by the mere use of [an emergency clause and]. . . . '[i]f this can be done, the right of referendum is a dead letter in this state.’ ” Id. at 681-82 (quoting oral argument). Is this not the exact result of the majority opinion?
The rule in Humiston is: "the legislature has no right to tack an emergency clause onto an act in order to prevent the people from exercising their right of referendum, un*838less that act is clearly within the exception set forth in the amendment.” State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 776, 380 P.2d 735 (1963) (emphasis added).
Here, the Legislature used a boilerplate37 emergency clause without even attempting to justify any exception to the right of referendum. In fact, the Legislature merely copied the constitutional provision into the statute.
Perhaps a few indisputable facts are subject to judicial notice such as the failure of the earlier referendum and the fact of a special session;38 however, potentially disputed facts cannot be noticed but must be "found” the old fashioned way—with a judge, trial, witnesses, cross-examination, etc. See footnote 36, supra.
Quite the contrary to the rule stated in Humiston, I find my brethren in the majority delve extensively into extraneous debatable matters neither reflected in the text of the statute nor within notice of the judiciary. For example, we are told about small children expressing their affection of baseball to the Governor. Majority at 790. We are told about hearsay testimony from interested persons which says nothing about any real or imagined immediate threat to the public peace, health, or safety. We are told *839what a good public investment this will be.39 Perhaps most interestingly, we are told that this unusual piece of legislation slid through a special session of the Legislature with bipartisan support from not only legislators and the executive, but also from a united front of business, labor, and *840professional sports entrepreneurs, each of whom would hope to benefit at taxpayers’ expense. Majority at 789. But we are told nothing about the views of taxpayers who voted down a similar measure in King County.40 presume these references to matters outside the judicial notice rule were simply made in the interest of thoroughness. Certainly they would have no proper influence on the outcome of this constitutional question if we applied the established rule of law.
To summarize the established rule, when the Legislature tacks on an emergency clause without telling what the emergency is, and judicially noticeable facts (see footnote 36, supra) do not clearly support its presence, we presume no emergency and strike the clause. However, when the Legislature goes further and tells us what the nature of the emergency is, we give such factual findings deference but do not abdicate our judicial duty to independently draw the correct legal conclusion.
"While the referendum process may be burdensome and the people may at times decline to spend or act as a majority of the Legislature would prefer, that is no reason to alter the mandatory constitutional division of power between the people and the Legislature. As the Court of Appeals stressed when discussing the "importance of initiatives and referendums”:
The people have a right to adopt any system of government they see fit to adopt. In its workings, it may not meet their expectations; it may be unwieldy and cumbersome; it may tend to inconvenience and prodigality; it may be the expression of a passion or sentiment rather than of sound reason; but it is the people’s government and, until changed by them, must be observed by the legislature and protected by the courts.
Save Our State Park v. Hordyk, 71 Wn. App. 84, 90, 856 *841P.2d 734 (1993) (citing State ex rel. Brislawn v. Meath, 84 Wash. 302, 320, 147 P. 11 (1915)).41
Unless the people repeal the constitutional right of referendum, we must uphold their right to pass on all issues other than those which actually and truly fall within the narrow exception. The words of this court 50 years ago are as true now as then: "To uphold a legislative declaration of emergency such as this would destroy the referendum and would permit the legislature, or a group of electors barely sufficient to invoke an initiative, to impose its will upon the majority . . . State ex rel. Robinson v. Reeves, 17 Wn.2d 210, 217, 135 P.2d 75, 146 A.L.R. 280 (1943).42
Other substantive constitutional challenges premature before referendum
Given my conclusion that this Act is subject to the referendum process, I will not consider CLEAN’s other claims that the act is substantively unconstitutional. See State ex rel. O’Connell v. Kramer, 73 Wn.2d 85, 86-87, 436 P.2d 786 (1968) and State ex rel. Donohue v. Coe, 49 Wn.2d 410, 418, 302 P.2d 202 (1956). James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 320 (1989) ("[Cjourts should not conduct pre-election review of a measure’s substantive validity because it involves issuing an advisory opinion, violates ripeness requirements and the policy of avoiding unnecessary constitutional questions, and interferes with a legislative process.”).
Conclusion
Authorizing or imposing a tax such as this has never *842been considered "necessary for the immediate preservation of public peace, health or safety,” nor should it be considered so today simply because it relates to baseball, hardly a core function of government much less an emergency of the kind to which Article II refers.
Allowing the Legislature to exempt its own questionable acts from referendum gives it an unfair, unconstitutional advantage over those citizens who may disagree with that judgment.
This majority is firmly on the Legislature’s team judging from its virtual repeal of the constitutional guaranty that the people may make their voice heard through the referendum process. The new rule appears to be: "If the Legislature says that the legislation is exempt from referendum, it is.”
The majority’s decision is terribly misguided. It simply cannot coexist with that referendum power which is constitutionally reserved to the people—the same power the founding citizens who ratified the constitution purposefully withheld from the Legislature. The decision is tantamount to dismissing a constitutional challenge to any statute because the Legislature has inserted a clause declaring the act to be constitutional. Brislawn, 84 Wash. at 316.
A majority of this court would have the judiciary cease to function independently from the Legislature as it will not enforce the rules against the Legislature. That isn’t what umpires are supposed to do. I’d call this one for the people and the constitution, not the Legislature. Unfortunately the score is Legislature 6, People 3.1 dissent.
Madsen, J., concurs with Sanders, J.
APPENDIX A
CHAPTER 1
[Engrossed House Bill 2115]
BASEBALL STADIUM FINANCING
AN ACT Relating to financing public sports facilities; *843amending RCW 46.16.301, 46.16.313, 67.70.240, 82.14.360, 35.21.280, 36.38.010, 36.100.010, 36.100.020, 39.10.120, 39.10.902, and 82.29A.130; adding a new section to chapter 82.14 RCW; adding a new section to chapter 67.70 RCW; adding new sections to chapter 36.100 RCW; creating new sections; and declaring an emergency.
Be it enacted by the Legislature of the State of Washington:
PARTI
STATE CONTRIBUTION
NEW SECTION. Sec. 101. A new section is added to chapter 82.14 RCW to read as follows:
(1) The legislative authority of a county with a population of one million or more may impose a sales and use tax in accordance with the terms of this chapter. The tax is in addition to other taxes authorized by law and shall be collected from those persons who are taxable by the state under chapters 82.08 and 82.12 RCW upon the occurrence of any taxable event within the county. The rate of tax shall not exceed 0.017 percent of the selling price in the case of a sales tax or value of the article used in the case of a use tax.
(2) The tax imposed under subsection (1) of this section shall be deducted from the amount of tax otherwise required to be collected or paid over to the department of revenue under chapter 82.08 or 82.12 RCW. The department of revenue shall perform the collection of such taxes on behalf of the county at no cost to the county.
(3) Moneys collected under this section shall only be used for the purpose of paying the principal and interest payments on bonds issued by a county to construct a baseball stadium.
(4) No tax may be collected under this section before January 1, 1996, and no tax may be collected under this section unless the taxes under RCW 82.14.360 are being *844collected. The tax imposed in this section shall expire when the bonds issued for the construction of the baseball stadium are retired, but not more than twenty years after the tax is first collected.
(5) As used in this section, "baseball stadium” means a baseball stadium with natural turf and a retractable roof or canopy, together with associated parking facilities, constructed in the largest city in a county with a population of one million or more.
Sec. 102. RCW 46.16.301 and 1994 c 194 s 2 are each amended to read as follows:
(1) The department may create, design, and issue special license plates that may be used in lieu of regular or personalized license plates for motor vehicles required to display two motor vehicle license plates, excluding vehicles registered under chapter 46.87 RCW, upon terms and conditions established by the department. The special plates may:
(a) Denote the age or type of vehicle; or
(b) Denote special activities or interests; or
(c) Denote the status, or contribution or sacrifice for the United States, the state of Washington, or the citizens of the state of Washington, of a registered owner of that vehicle; or
(d) Display a depiction of the name and mascot or symbol of a state university, regional university, or state college as defined in RCW 28B.10.016.
(2) The department shall create, design, and issue a special baseball stadium license plate that may be used in lieu of regular or personalized license plates for motor vehicles required to display two motor vehicle license plates, excluding vehicles registered under chapter 46.87 RCW, upon terms and conditions established by the department. The special plates shall commemorate the construction of a baseball stadium, as defined in section 101 of this act. The department shall also issue to each recipient of a special baseball stadium license plate a certif*845icate of participation in the construction of the baseball stadium.
(3) The department has the sole discretion to determine whether or not to create, design, or issue any series of special license plates, other than the special baseball stadium license plate under subsection (2) of this section, and whether any interest or status merits the issuance of a series of special license plates. In making this determination, the department shall consider whether or not an interest or status contributes or has contributed significantly to the public health, safety, or welfare of the citizens of the United States or of this state or to their significant benefit, or whether the interest or status is recognized by the United States, this state, or other states, in other settings or contexts. The department may also consider the potential number of persons who may be eligible for the plates and the cost and efficiency of producing limited numbers of the plates. The design of a special license plate shall conform to all requirements for plates for the type of vehicle for which it is issued, as provided elsewhere in this chapter.
Sec. 103. RCW 46.16.313 and 1994 c 194 s 4 are each amended to read as follows:
(1) The department may establish a fee for each type of special license plates issued under RCW 46.16.301(l)(a), (b), or (c) in an amount calculated to offset the cost of production of the special license plates and the administration of this program. The fee shall not exceed thirty-five dollars and is in addition to all other fees required to register and license the vehicle for which the plates have been requested. All such additional special license plate fees collected by the department shall be deposited in the state treasury and credited to the motor vehicle fund.
(2) In addition to all fees and taxes required to be paid upon application, registration, and renewal registration of a motor vehicle, the holder of a collegiate license plate shall pay a fee of thirty dollars. The department shall deduct an amount not to exceed two dollars of each fee *846collected under this subsection for administration and collection expenses incurred by it. The remaining proceeds, minus the cost of plate production, shall be remitted to the custody of the state treasurer with a proper identifying detailed report. The state treasurer shall credit the funds to the appropriate collegiate license plate fund as provided in RCW 28B.10.890.
(3) In addition to all fees and taxes required to be paid upon application, registration, and renewal registration of a motor vehicle, the holder of a special baseball stadium license plate shall pay a fee of thirty dollars. The department shall deduct an amount not to exceed two dollars of each fee collected under this subsection for administration and collection expenses incurred by it. The remaining proceeds, minus the cost of plate production, shall be distributed to a county for the purpose of paying the principal and interest payments on bonds issued by the county to construct a baseball stadium, as defined in section 101 of this act, including reasonably necessary preconstruction costs, while the taxes are being collected under RCW 82.14.360. After this date, the state treasurer shall credit the funds to the state general fund.
NEW SECTION. Sec. 104. A new section is added to chapter 67.70 RCW to read as follows:
The lottery commission shall conduct at least two but not more than four scratch games with sports themes per year. These games are intended to generate additional moneys sufficient to cover the distributions under RCW 67.70.240(5).
Sec. 105. RCW 67.70.240 and 1987 c 513 s 7 are each amended to read as follows:
The moneys in the state lottery account shall be used only: (1) For the payment of prizes to the holders of winning lottery tickets or shares; (2) for purposes of making deposits into the reserve account created by RCW 67.70.250 and into the lottery administrative account created by RCW 67.70.260; (3) for purposes of making deposits into the state’s general fund; (4) for purposes of making *847deposits into the housing trust fund under the provisions of section 7 of this 1987 act; (5) for distribution to a county for the purpose of paying the principal and interest payments on bonds issued by the county to construct a baseball stadium, as defined in section 101 of this act, including reasonably necessary preconstruction costs; (6) for the purchase and promotion of lottery games and game-related services; and {6H7) for the payment of agent compensation. Three million dollars shall be distributed under subsection (5) of this section during calendar year 1996. During subsequent years, such distributions shall equal the prior year’s distributions increased by four percent. Distributions under subsection (5) of this section shall cease when the bonds issued for the construction of the baseball stadium are retired, but not more than twenty years after the tax under section 101 of this act is first imposed.
The oifice of financial management shall require the allotment of all expenses paid from the account and shall report to the ways and means committees of the senate and house of representatives any changes in the allotments.
NEW SECTION. Sec. 106. Sections 101 through 105 of this act constitute the entire state contribution for a baseball stadium, as defined in section 101 of this act. The state will not make any additional contributions based on revised cost or revenue estimates, cost overruns, unforeseen circumstances, or any other reason.
PART II
LOCAL FUNDING
Sec. 201. RCW 82.14.360 and 1995 1st sp.s. c 14 s 7 are each amended to read as follows:
(1) The legislative authority of a county with a population of one million or more operating under a county charter may impose a special stadium sales and use tax fey resolution adopted on or-before December 31, 1995, for collection following its approval by a majority of the vot*848ers in the county at a general or special elect-inn upon the retail sale or use within the county by restaurants, taverns, and bars of food and beverages that are taxable by the state under chapters 82.08 and 82.12 RCW. The rate of the tax shall not exceed five-tenths of one percent of the selling price in the case of a sales tax, or value of the article used in the case of a use tax. The tax imposed under this subsection is in addition to any other taxes authorized by law and shall not be credited against any other tax imposed upon the same taxable event. As used in this section, “restaurant” does not include grocery stores, mini-markets, or convenience stores.
(2) The legislative authority of a county with a population of one million or more may impose a special stadium sales and use tax upon retail car rentals within the county that are taxable by the state under chapters 82.08 and 82.12 RCW. The rate of the tax shall equal one-tenth-of one not exceed two percent of the selling price in the case of a sales tax, or rental value of the article used vehicle in the case of a use tax. The tax imposed under this section subsection is in addition to any other taxes authorized by law and shall not be credited against any other tax imposed upon the same taxable event.
(3) The revenue from the tax taxes imposed under this section shall be used for the purpose of principal and interest payments on bonds, issued by a public facilities district^ created within the county under chapter 36.100 R6W, to acquire, construct, own, remodel, maintain, equip, reequip, repair, and operate a baseball stadium with a retractable roof or canopy and natural-turf. Revenues from the taxes authorized in this section may be used for design and other preconstruction costs of the baseball stadium until bonds are issued for the baseball stadium. The county shall issue bonds, in an amount determined to be necessary by the public facilities district, for the district to acquire, construct, own, and equip the baseball stadium. The county shall have no obligation to issue bonds in an amount greater than that which would be supported by *849the tax revenues under this section, section 101 of this act, and RCW 36.38.010(3)(a) and (b). If the revenue from the tax taxes imposed under this section exceeds the amount needed for such principal and interest payments in any year, the excess shall be used solely:
(a) For either or-bot-h:--(a)-early retirement of the bonds issued for the baseball stadium; or
(b) retirement of bonds issued for expanding, remodel-ling, repairing, or reequipping of a multipurpose-st-a-diu-mthat- has a seating capacity-over forty- five thousand and
(b) If the revenue from the taxes imposed under this section exceeds the amount needed for the purposes in (a) of this subsection in any year, the excess shall be placed in a contingency fund which may only be used to pay unanticipated capital costs on the baseball stadium, excluding any cost overruns on initial construction.
(4) The tax taxes authorized under this section may shall not be collected only after June 30,1997, unless the county executive has certified to the department of revenue that a professional major league baseball team has made a binding and legally enforceable contractual commitment to:
(a) Play at least ninety percent of its home games in the stadium for a period of time not shorter than the term of the bonds issued to finance the initial construction of the stadium;
(b) Contribute principal of forty-five million dollars toward the bonded reasonably necessary preconstruction costs including, but not limited to architectural, engineering, environmental, and legal services, and the cost of construction of the stadium, or to any associated public purpose separate from bond-financed property, including without limitation land acquisition, parking facilities, equipment, infrastructure, or other similar costs associated with the project, which contribution shall be made during a term not to exceed the term of the bonds issued to finance the initial construction of the stadium. If all or part of the contribution is made after the date of issuance *850of the bonds, the team shall contribute an additional amount equal to the accruing interest on the deferred portion of the contribution, calculated at the interest rate on the bonds maturing in the year in which the deferred contribution is made. No part of the contribution may be made without the consent of the county until a public facilities district is created under chapter 36.100 RCW to acquire, construct, own, remodel, maintain, equip, reequip, repair, and operate a baseball stadium. To the extent possible, contributions shall be structured in a manner that would allow for the issuance of bonds to construct the stadium that are exempt from federal income taxes; and
(c) Share a portion of the profits generated by the baseball team from the operation of the professional franchise for a period of time equal to the term of the bonds issued to finance the initial construction of the stadium, after offsetting any losses incurred by the baseball team after the effective date of chapter 14, Laws of 1995 1st sp. sess. Such profits and the portion to be shared shall be defined by agreement between the public facilities district and the baseball team. The shared profits shall be used to retire the bonds issued to finance the initial construction of the stadium. If the bonds are retired before the expiration of their term, the shared profits shall be paid to the public facilities district.
(5) No tax may be collected under this section before January 1, 1996. Before collecting the taxes under this section or issuing bonds for a baseball stadium, the county shall create a public facilities district under chapter 36.100 RCW to acquire, construct, own, remodel, maintain, equip, reequip, repair, and operate a baseball stadium.
(6) The county shall assemble such real property as the district determines to be necessary as a site for the baseball stadium. Property which is necessary for this purpose that is owned by the county on the effective date of this section shall be contributed to the district, and property which is necessary for this purpose that is acquired by the county on or after the effective date of this section shall be conveyed to the district.
*851(7) The proceeds of any bonds issued for the baseball stadium shall be provided to the district.
(8) As used in this section, "baseball stadium” means "baseball stadium” as defined in section 101 of this act.
(9) The tax taxes imposed under this section shall expire when the bonds issued for the construction of the new public facilities baseball stadium are retired, but not later than twenty years after the tax-is taxes are first collected.
Sec. 202. RCW 35.21.280 and 1995 1st sp. s. c 14 s 8 are each amended to read as follows:
Every city and town may levy and fix a tax of not more than one cent on twenty cents or fraction thereof to be paid by the person who pays an admission charge to any place: PROVIDED, No city or town shall impose such tax on persons paying an admission to any activity of any elementary or secondary school. This includes a tax on persons who are admitted free of charge or at reduced rates to any place for which other persons pay a charge or a regular higher charge for the same privileges or accommodations. A city that is located in a county with a population of one million or more may not levy a tax on events in stadia constructed on or after January 1, 1995, that are owned by county government or a public facilities district under chapter 36.100 RCW and that have seating capacities over forty thousand. The city or town may require anyone who receives payment for an admission charge to collect and remit the tax to the city or town.
The term "admission charge” includes:
(1) A charge made for season tickets or subscriptions;
(2) A cover charge, or a charge made for use of seats and tables reserved or otherwise, and other similar accommodations;
(3) A charge made for food and refreshment in any place where free entertainment, recreation or amusement is provided;
(4) A charge made for rental or use of equipment or facilities for purposes of recreation or amusement; if the *852rental of the equipment or facilities is necessary to the enjoyment of a privilege for which a general admission is charged, the combined charges shall be considered as the admission charge;
(5) Automobile parking charges if the amount of the charge is determined according to the number of passengers in the automobile.
Sec. 203. RCW 36.38.010 and 1995 1st sp. s. c 14 s 9 are each amended to read as follows:
(1) Any county may by ordinance enacted by its county legislative authority, levy and fix a tax of not more than one cent on twenty cents or fraction thereof to be paid for county purposes by persons who pay an admission charge to any place, including a tax on persons who are admitted free of charge or at reduced rates to any place for which other persons pay a charge or a regular higher charge for the same or similar privileges or accommodations; and require that one who receives any admission charge to any place shall collect and remit the tax to the county treasurer of the county: PROVIDED, No county shall impose such tax on persons paying an admission to any activity of any elementary or secondary school.
(2) As used in this chapter, the term "admission charge” includes a charge made for season tickets or subscriptions, a cover charge, or a charge made for use of seats and tables, reserved or otherwise, and other similar accommodations; a charge made for food and refreshments in any place where any free entertainment, recreation, or amusement is provided; a charge made for rental or use of equipment or facilities for purpose of recreation or amusement, and where the rental of the equipment or facilities is necessary to the enjoyment of a privilege for which a general admission is charged, the combined charges shall be considered as the admission charge. It shall also include any automobile parking charge where the amount of such charge is determined according to the number of passengers in any automobile.
(3) The tax herein authorized shall not be exclusive and *853shall not prevent any city or town within the taxing county, when authorized by law, from imposing within its corporate limits a tax of the same or similar kind: PROVIDED, That whenever the same or similar kind of tax is imposed by any such city or town, no such tax shall be levied within the corporate limits of such city or town by the county, except that the legislative authority of a county with a population of one million or more may exclusively levy a tax taxes on events in stadiums constructed on or after January 1, 1995, that are owned by eouarty-government or a public facilities district under chapter 36.100 RCW and that have seating capacities over forty thousand at the rates of:
(a) Not more than one cent on twenty cents or fraction thereof?
(4) By contract, -thecounty shall obligate-itself to provide the revenue-from- the tax-authorized by this section on events in stadia owned, managed,-or -operated by ar-publ-ie facilities-district, having- seating capacities--over forty thousand; and constructed on or after January-1, 1995, to the-public facilities-district. , to be used for the purpose of paying the principal and interest payments on bonds issued by a county to construct a baseball stadium as defined in section 101 of this act. If the revenue from the tax exceeds the amount needed for that purpose, the excess shall be placed in a contingency fund which may only be used to pay unanticipated capital costs on the baseball stadium, excluding any cost overruns on initial construction; and
(b) Not more than one cent on twenty cents or fraction thereof, to be used for the purpose of paying the principal and interest payments on bonds issued by a county to construct a baseball stadium as defined in section 101 of this act. The tax imposed under this subsection (3)03) shall expire when the bonds issued for the construction of the *854baseball stadium are retired, but not later than twenty years after the tax is first collected.
PART III
MISCELLANEOUS
Sec. 301. RCW 36.100.010 and 1995 1st sp. s. c 14 s 1 are each amended to read as follows:
(1) A public facilities district may be created in any county and shall be coextensive with the boundaries of the county.
(2) A public facilities district shall be created upon adoption of a resolution providing for the creation of such a district by the county legislative authority in which the proposed district is located.
(3) A public facilities district is a municipal corporation, an independent taxing "authority” within the meaning of Article VII, section 1 of the state Constitution, and a "taxing district” within the meaning of Article VII, section 2 of the state Constitution.
(4) No taxes authorized under this chapter may be assessed or levied unless a majority of the voters of the public facilities district has approved such tax at a general or special election. A single ballot proposition may both validate the imposition of the sales and use tax under RCW 82.14.048 and the excise tax under RCW 36.100.040.
(5) A public facilities district shall constitute a body corporate and shall possess all the usual powers of a corporation for public purposes as well as all other powers that may now or hereafter be specifically conferred by statute, including, but not limited to, the authority to hire employees, staff, and services, to enter into contracts, and to sue and be sued.
(6) The county legislative authority or the city council may transfer property to the public facilities district as part of the process of creating the public facilities-district created under this chapter. No property that is encumbered with debt or that is in need of major capital renova*855tion may be transferred to the district without the agreement of the district and revenues adequate to retire the existing indebtedness.
Sec. 302. RCW 36.100.020 and 1995 1st sp.s. c 14 s 2 are each amended to read as follows:
(1) A public facilities district shall be governed by a board of directors consisting of five or seven members as provided in this section. If the largest city in the county has a population that is at least forty percent of the total county population, the board of directors of the public facilities district shall consist of five members selected as follows: (a) Two members appointed by the county legislative authority to serve for four-year staggered terms; Ob) two members appointed by the city council of the largest city in the county to serve for four-year staggered terms; and (c) one person to serve for a four-year term who is selected by the other directors. If the largest city in the county has a population of less than forty percent of the total county population, the county legislative authority shall establish in the resolution creating the public facilities district whether the board of directors of the public facilities district has either five or seven members, and the county legislative authority shall appoint the members of the board of directors to reflect the interests of cities and towns in the county, as well as the unincorporated area of the county. However, if the county has a population of one million or more, the largest city in the county has a population of less than forty percent of the total county population, and the county operates under a county charter, which provides for an elected county executive, three members shall be appointed by the governor and the remaining members shall be appointed by the county executive subject to confirmation by the county legislative authority. Of the members appointed by the governor, the speaker of the house of representatives and the majority leader of the senate shall each recommend to the governor a person to be appointed to the board.
(2) At least one member on the board of directors shall *856be representative of the lodging industry in the public facilities district before the public facilities district imposes the excise tax under RCW 36.100.040.
(3) Members of the board of directors shall serve four-year terms of office, except that two of the initial five board members or three of the initial seven board members shall serve two-year terms of office.
(4) A vacancy shall he filled in the same manner as the original appointment was made and the person appointed to fill a vacancy shall serve for the remainder of the unexpired term of the office for the position to which he or she was appointed.
(5) A director appointed by the governor may be removed from office by the governor. Any other director may be removed from office by action of at least two-thirds of the members of the legislative authority which made the appointment.
NEW SECTION. Sec. 303. A new section is added to chapter 36.100 RCW to read as follows:
In addition to other powers and restrictions on a public facilities district, the following shall apply to a public facilities district, located in a county with a population of one million or more, that constructs a baseball stadium:
(1) The public facilities district, in consultation with the professional baseball team that will use the stadium, shall have the authority to determine the stadium site;
(2) The public facilities district, in consultation with the professional baseball team that will use the stadium, shall have the authority to establish the overall scope of the stadium project, including, but not limited to, the stadium itself, associated parking facilities, associated retail and office development that are part of the stadium facility, and ancillary services or facilities;
(3) The public facilities district, in consultation with the professional baseball team that will use the stadium, shall have the final authority to make the final determination of the stadium design and specifications;
*857(4) The public facilities district shall have the authority to contract with the baseball team that will use the stadium to obtain architectural, engineering, environmental, and other professional services related to the stadium site and design options, environmental study requirements, and obtaining necessary permits for the stadium facility;
(5) The public facilities district, in consultation with the professional baseball team that will use the stadium, shall have the authority to establish the project budget and bidding specifications and requirements on the stadium project;
(6) The public facilities district, in consultation with the professional baseball team that will use the stadium and the county in which the public facilities district is located, shall have the authority to structure the financing of the stadium facility project; and
(7) The public facilities district shall consult with the house of representatives executive rules committee and the senate facilities and operations committee before selecting a name for the stadium.
As used in this section, "stadium” and "baseball stadium” mean a "baseball stadium” as defined in section 101 of this act.
NEW SECTION. Sec. 304. A new section is added to chapter 36.100 RCW to read as follows:
A public facilities district may accept and expend moneys that may be donated for the purpose of a baseball stadium as defined in section 101 of this act.
Sec. 305. RCW 39.10.120 and 1994 c 132 s 12 are each amended to read as follows:
(1) Except as provided in subsection (2) of this section, the alternative public works contracting procedures authorized under this chapter are limited to public works contracts signed before July 1, 1997. Methods of public works contracting authorized by RCW 39.10.050 and 39.10.060 shall remain in full force and effect until completion of contracts signed before July 1, 1997.
*858(2) For the purposes of a baseball stadium as defined in section 101 of this act, the design-build contracting procedures under RCW 39.10.050 shall remain in full force and effect until completion of contracts signed before December 31, 1997.
Sec. 306. RCW 39.10.902 and 1994 c 132 s 15 are each amended to read as follows:
The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective July 1, 1997:
(1) RCW 39.10.010 and 1994 c 132 s 1;
(2) RCW 39.10.020 and 1994 c 132 s 2;
(3) RCW 39.10.030 and 1994 c 132 s 3;
(4) RCW 39.10.040 and 1994 c 132 s 4;
(5) RCW 39.10.050 and 1994 c 132 s 5;
(6) RCW 39.10.060 and 1994 c 132 s 6;
(7) RCW 39.10.070 and 1994 c 132 s 7;
(8) RCW 39.10.080 and 1994 c 132 s 8;
(9) RCW 39.10.090 and 1994 c 132 s 9;
(10) RCW 39.10.100 and 1994 c 132 s 10;
(11) RCW 39.10.110 and 1994 c 132 s 11;
(12) R6W-39.10.120 and 1994 c 132 s 12;
&3)-RCW 39.10.900 and 1994 c 132 s 13;
(14) (13) RCW 39.10.901 and 1994 c 132 s 14; and
(15) (14) RCW 39.10.902 and 1994 c 132 s 15.
Sec. 307. RCW 82.29Á.130 and 1995 c 138 s 1 are each amended to read as follows:
The following leasehold interests shall be exempt from taxes imposed pursuant to RCW 82.29A.030 and 82.29A.040:
(1) All leasehold interests constituting a part of the operating properties of any public utility which is assessed and taxed as a public utility pursuant to chapter 84.12 RCW.
(2) All leasehold interests in facilities owned or used by *859a school, college or university which leasehold provides housing for students and which is otherwise exempt from taxation under provisions of RCW 84.36.010 and 84.36.050.
(3) All leasehold interests of subsidized housing where the fee ownership of such property is vested in the government of the United States, or the state of Washington or any political subdivision thereof but only if income qualification exists for such housing.
(4) All leasehold interests used for fair purposes of a nonprofit fair association that sponsors or conducts a fair or fairs which receive support from revenues collected pursuant to RCW 67.16.100 and allocated by the director of the department of agriculture where the fee ownership of such property is vested in the government of the United States, the state of Washington or any of its political subdivisions: PROVIDED, That this exemption shall not apply to the leasehold interest of any sublessee of such nonprofit fair association if such leasehold interest would be taxable if it were the primary lease.
(5) All leasehold interests in any property of any public entity used as a residence by an employee of that public entity who is required as a condition of employment to live in the publicly owned property.
(6) All leasehold interests held by enrolled Indians of lands owned or held by any Indian or Indian tribe where the fee ownership of such property is vested in or held in trust by the United States and which are not subleased to other than to a lessee which would qualify pursuant to this chapter, RCW 84.36.451 and 84.40.175.
(7) All leasehold interests in any real property of any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States: Provided, that this exemption shall apply only where it is determined that contract rent paid is greater than or equal to ninety percent of fair market rental, to be determined by the department of revenue using the same criteria used to establish taxable rent in RCW 82.29A.020(2)(b).
*860(8) All leasehold interests for which annual taxable rent is less than two hundred fifty dollars per year. For purposes of this subsection leasehold interests held by the same lessee in contiguous properties owned by the same lessor shall be deemed a single leasehold interest.
(9) All leasehold interests which give use or possession of the leased property for a continuous period of less than thirty days: PROVIDED, That for purposes of this subsection, successive leases or lease renewals giving substantially continuous use of possession of the same property to the same lessee shall be deemed a single leasehold interest: PROVIDED FURTHER, That no leasehold interest shall be deemed to give use or possession for a period of less than thirty days solely by virtue of the reservation by the public lessor of the right to use the property or to allow third parties to use the property on an occasional, temporary basis.
(10) All leasehold interests under month-to-month leases in residential units rented for residential purposes of the lessee pending destruction or removal for the purpose of constructing a public highway or building.
(11) All leasehold interests in any publicly owned real or personal property to the extent such leasehold interests arises solely by virtue of a contract for public improvements or work executed under the public works statutes of this state or of the United States between the public owner of the property and a contractor.
(12) All leasehold interests that give use or possession of state adult correctional facilities for the purposes of operating correctional industries under RCW 72.09.100.
(13) All leasehold interests used to provide organized and supervised recreational activities for disabled persons of all ages in a camp facility and for public recreational purposes by a nonprofit organization, association, or corporation that would be exempt from property tax under RCW 84.36.030(1) if it owned the property. If the publicly owned property is used for any taxable purpose, the leasehold excise taxes set forth in RCW 82.29A.030 and *86182.29A.040 shall he imposed and shall he apportioned accordingly.
(14) All leasehold interests in the public or entertainment areas of a baseball stadium with natural turf and a retractable roof or canopy that is in a county with a population of over one million, that has a seating capacity of over forty thousand, and that is constructed on or after January 1, 1995. “Public or entertainment areas” include ticket sales areas, ramps and stairs, lobbies and concourses, parking areas, concession areas, restaurants, hospitality and stadium club areas, kitchens or other work areas primarily servicing other public or entertainment areas, public rest room areas, press and media areas, control booths, broadcast and production areas, retail sales areas, museum and exhibit areas, scoreboards or other public displays, storage areas, loading, staging, and servicing areas, seating areas and suites, the playing field, and any other areas to which the public has access or which are used for the production of the entertainment event or other public usage, and any other personal property used for these purposes. “Public or entertainment areas” does not include locker rooms or private offices exclusively used by the lessee.
NEW SECTION. Sec. 308. The public facilities district, the county, and the city with the largest population in the county shall enter into an agreement regarding the construction of a baseball stadium as defined in section 101 of this act. The agreement shall address, but not be limited to:
(1) Expedited permit processing for the design and construction of the project;
(2) Expedited environmental review processing;
(3) Expedited processing of requests for street, right of way, or easement vacations necessary for the construction of the project; and
(4) Other items deemed necessary for the design and construction of the project.
*862NEW SECTION. Sec. 309. Part headings as used in this act constitute no part of the law.
NEW SECTION. Sec. 310. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take eifect immediately.
Passed the House October 14, 1995.
Passed the Senate October 14, 1995.
Approved by the Governor October 17, 1995.
Filed in the Office of the Secretary of State October 17, 1995.
M’Culloch v. Maryland, 17 U.S. 316, 407, 4 L. Ed. 579, 4 Wheat. 316 (1819).
I note that article II, section 1, was amended by amendment 72 in 1981. However, amendment 72 addressed time periods for filing of initiatives and is irrelevant to the issue before us today. It was amendment 7 which created the ref- . erendum power in 1912.
Laws of 1995, 3d Spec. Sess., ch. 1.
This is the classic rule of all constitutional interpretation:
"Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.”
See Joseph Story, Commentaries on the Constitution of the United States § 451 (Thomas Cooley ed., 5th ed. 1891).
Also see State v. Rivers, 129 Wn.2d 697, 720, 921 P.2d 495 (1996) (Sanders, J., dissenting) ("Our Constitution arose from a profound distrust of the Legislature and in large part was designed to strictly limit the Legislature.”) (citing Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q. 227, 251 (Oct. 1913)).
Frederic C. Howe, The City: The Hope of Democracy 171-72 (Univ. of Wash. Press 1967) (1905).
The Federalist No. 78 at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961):
"No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.
"If it be said that the legislative body are themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution .... It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature .... to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands *829in opposition to that of the people declared in the constitution, the judges ought to he governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
Marbury v. Madison, 5 U.S. 137, 176-80, 1 Crunch 137, 2 L. Ed. 60 (1803) (Marshall, C.J.):
"The powers of the legislature are defined and limited; and that those limits may not he mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, he passed by those intended to be restrained? .... It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
"Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
". . . [A]n act of the legislature repugnant to the constitution is void.
"... If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on.
". . . (at 180) Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.
"If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime ....
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to he essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
See also State ex rel. McLeod v. Reeves, 22 Wn.2d 672, 674, 157 P.2d 718 (1945) ([wlhether an emergency exists is "in the ultimate, a judicial question.”); see also Professor Philip A. Trautman, Initiative and Referendum in Washington, 49 Wash. L. Rev. 55, 73 n.68 (1973) ("[Wlhether or not laws passed by the state legislature are 'emergent’ as exceptions to the referendum provisions of the state constitution is a judicial question.”).
See also State ex rel. Gray v. Martin, 29 Wn.2d 799, 806, 189 P.2d 637 (1948) ("[A]n emergency does not mean expediency, convenience, or best interest . . . .”) (citing State ex rel. Reiter v. Hinkle, 161 Wash. 652, 656, 297 P. 1071 (1931)).
See also State ex rel. Reiter v. Hinkle, 161 Wash. 652, 657, 297 P. 1071 (1931) (An emergency is limited to "Hirst, police power acts, whose purpose is the immediate preservation of the public peace, health or safety; [or] second, those which have for their object the support of the state government. . . .”).
Apparently the alleged motivation behind the Stadium Act is the belief by some that the Mariners baseball team will leave Seattle unless it is furnished a new stadium, because, it is asserted, that more fans would attend the new facility than the existing Kingdome facility. However, as Yogi Berra said, "If people don’t want to come out to the ballpark, nobody’s going to stop them.”
Cf. Dale F. Rubin, Public Subsidies to Private Corporations and the Washington Constitution, Washington Institute foe Policy Studies (1996).
This is one of the leading and most recent opinions on the matter which is extremely articulate and persuasive.
The majority’s concurrence claims that "the burden of proving an emergency clause invalid rests squarely on the party challenging the clause. Hoppe [v. State, 78 Wn.2d 164, 170, 469 P.2d 909 (1970)].” Concurrence at 817. However Hoppe says nothing of the kind and relates to a completely different constitutional provision in the context of completely unrelated subject matter.
"Judicial notice” is limited to "easily accessible sources of indisputable accuracy and verifiable certainty,” such as encyclopedias, etc. State ex rel. Humiston, 61 Wn.2d at 779. See also Black’s Law Dictionary 848 (6th ed. 1990) (judicial notice is limited to facts which, "from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety . . . .”); 5 Karl B. Tegland, Washington Practice: Evidence 102 (3d ed. 1989) ("[a] judicially noticed fact must be one not subject to reasonable dispute
*836. . . .”); Feree v. Fleetham, 7 Wn. App. 767, 771, 502 P.2d 490 (1972) (before a court can take judicial notice of alleged "facts,” those facts must be " 'known’— that is, well established and authoritatively settled, without qualification or contention . . . .’ and 'if there is any doubt whatever either as to the fact itself or as to its being a matter of common knowledge,’ ” then judicial notice is improper (citation omitted); Snow’s Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 291, 494 P.2d 216 (1972) ("[statements and opinions of individual legislators generally are not considered by the courts in construing legislation . . . .” [however, the reason for offering the matters here asserted is not to "construe” legislation, but rather to constitutionally justify legislation which is unambiguous on its face]). Pacts regarding the status or intention of the Mariners are not judicially noticeable, nor is legislative debate, nor is what small children told the Governor, and nor is what some people testified at legislative hearings. Compare Majority at 789-90.
I also disagree with the concurrence that "[F]act-finding is left to the Legislature,” (citing Hamilton v. Martin, 173 Wash. 249, 258, 23 P.2d 1 (1933)). Concurrence at 817. This is true only in the sense that the Legislature may set forth specific factual findings on the face of legislation. However that is inapplicable to the case at bar since the Stadium Act has no factual findings whatsoever on its face. There may be other "facts,” or alleged facts, which are discussed during the legislative process; however, those facts are not "found” by the Legislature. Facts not set forth on the face of the legislation, unless capable of judicial notice, are relevant to a judicial proceeding only insofar as they are found by the traditional judicial method.
Black’s Law Dictionary defines "boilerplate” as "language which is used commonly in documents having a definite meaning in the same context without variation; used to describe standard language in a legal document that is identical in instruments of a like nature.” Black’s Law Dictionary 175 (6th ed. 1990). This clause is "boilerplate” because it is a word for word recitation of the constitutional provision inserted in numerous different enactments (almost 1,000) without reference to the subject or purpose thereof, nor to the specific applicability to the enactment. Here, for example, the emergency clause also references "support of the state government and its existing public institutions . . .” but even the majority rejects this phrase: "[I]t cannot seriously be contended that the Stadium Act is in support of an existing state institution.” Majority at 805. The addition of such boilerplate seems to signify no more than the legislative intention that the enactment become effective immediately and/or avoid the prospect of referendum, but it does not tell us why the Legislature believes the emergency exists, or if it does.
The concurrence finds significance in that the Stadium Act was passed in a special session called for that purpose. Concurrence at 819. However, it cites no authority giving this "fact” any significance whatsoever regarding the subject at hand. We have had many special sessions but that is no indication that bills passed at them have emergency clauses much less comply with constitutional criteria if they do.
Compare Glen Seredynski et al., Perspective On Team Relocation, League Expansion, and Public Policy or, Where Do We Put This Hockey Franchise and Why Would You Care? 4 Seton Hall J. Sport L. 663, 665 (1994) (Threat of relocation "generates fierce inter-city competitive bidding that leads to a wasteful expenditure of social resources by forcing the building of playing facilities, granting tax concessions, or guaranteeing season ticket sales.”).
Pamela Edwards, Note, How Much Does that $8.00 Yankee Ticket Really Cost? An Analysis of Local Governments’ Expenditure of Public Funds to Maintain, Improve or Acquire an Athletic Stadium For The Use of Professional Sports Teams, 18 Fordham Urb. L.J. 695, 698-99 (1991) ("In a recent study, one economist found no correlation between the presence of a sports stadium or arena and local long-term economic growth.”) (citing Baade, Is There an Economic Rationale for Subsidizing Sports Stadiums, 13 Heartland Inst. Pol’y Study No. 2 at 12-18 (1987)).
Edwards, supra, 18 Fordham Urb. L.J. at 699 ("Comparing the construction costs of publicly owned stadiums with those of privately owned stadiums, a second economist concluded that privately owned facilities were built more economically and efficiently. Privately owned stadiums were also more efficiently operated than publicly owned stadiums. Examples of publicly owned stadium projects that have lost money include the New Orleans Superdome and the Pontiac Silverdome. Stadiums are expensive to construct and to operate; those that are not the home of a professional sports team may host major events infrequently, thereby making it difficult for the stadium to generate enough revenue to cover its maintenance costs. When a government-owned stadium cannot cover operating expenses from its revenues, the taxpayers must foot the bill. Several major stadiums have generated large losses in the past and continue to do so. These losses must be covered by the public treasury: the Oakland Coliseum lost $30 million between 1964 and 1984; the Metrodome in Minnesota lost $1.8 million every year during the early 1980s; the New Orleans Superdome incurred deficits of between $3 million and $5 million dollars per year for the first nine years of its existence. Taxpayers in California, Minnesota and Louisiana have had to cover the operating losses of local stadiums.”).
Id. at 700-01 (“several host cities have faced the loss of major league sports teams. In order to keep franchises in their cities, local officials have granted a number of taxpayer subsidies to team owners. These subsidies include below market rent, tax exemptions and tax rebates. The State of Louisiana agreed to remit to the team all revenue the Saints generate by playing in the Superdome. This action, combined with the state’s abolition of an amusement tax on tickets, transfers $2.5 million per year from the state’s taxpayers to the Saints. Philadelphia spent $30 million to construct skyboxes for the Eagles with the agreement that the Eagles would retain the revenue from the boxes. The City of Philadelphia provided the Phillies with $1 million dollars for a new scoreboard, allowed the team to construct special baseball suites, and assumed annual loan payments of $745,000 on behalf of the team. The agreement also permitted the team to retain most of the revenue earned by the suites.”).
Perhaps they were at work trying to scrape enough money together to feed their family or pay their taxes, rather than attending legislative hearings. Perhaps they rely on this court to protect their legal rights.
See footnote 34, supra.
The concurrence to the majority claims the dissent is "insulting” (Concurrence at 817), harsh, unfounded, without merit and "reflects a reckless willingness to throw off the fetters of judicial restraint and impose judicial policy preferences on the people of Washington” (Concurrence at 820). To the contrary, it is the majority and the concurrence which refuse to enforce the people’s right to express their preference through referendum.