State v. Broadaway

Talmadge, J.

(concurring) — I write separately in this case only because the majority incorrectly analyzes article II, section 19 of the Washington Constitution as it applies to Initiative 159. To determine if a section of Initiative *137159 is outside the scope of the title for purposes of article II, section 19, the majority looks only to the legislative title, stating the legislative title is relevant to legislators who enacted Initiative 159 into law. Majority op. at 124-26. However, under article II, section 19, courts must look to both the ballot question and the legislative title of an initiative to the Legislature in assessing the constitutionality of a section. In the present case, scrutiny of both the legislative question and the ballot title demonstrates the section of Initiative 159 applicable to Broadaway is valid because it is within the title of the enactment.

The majority misunderstands the process by which an initiative measure becomes law. There are different types of initiatives and referenda set out under article II, section 1 of the Washington Constitution. Washington Fed’n of State Employees v. State, 127 Wn.2d 544, 577-78, 901 P.2d 1028 (1995) (Talmadge, J., concurring in part/ dissenting in part). With respect to initiatives to the Legislature, like Initiative 134 at issue in Washington Fed’n or Initiative 159 at issue in this case, different procedural rules apply than for initiatives to the people. Article II, section 1 of the constitution requires fewer signatures to secure a ballot position for an initiative to the Legislature than it requires for an initiative to the people. Once an initiative to the people receives sufficient signatures, however, the Legislature may enact the measure as initiated by the people, take no action, or offer an alternative for the ballot. If the Legislature enacts the measure as initiated by the people, it becomes law. If the Legislature takes no action with respect to the measure, the measure is placed on the ballot at the next statewide general election. If the Legislature enacts an alternative to the measure proposed by the people, both the measure proposed by the people and the alternative proposed by the Legislature are placed on the ballot.

Plainly, for initiatives to the Legislature, both the legislative title and the ballot question are relevant to the decision-making process. The only way an initiative to the *138Legislature can be placed on the legislative agenda is by the signature-gathering process, where the ballot question, a short statement of the intent of the initiative, is decisively set out for voters; few potential or actual signators, however, read a proposed initiative in its entirety prior to signing the initiative. In re Ballot Title for Initiative 333, 88 Wn.2d 192, 198, 558 P.2d 248, 559 P.2d 562 (1977). As a result, proponents of the measure prominently feature the ballot question in the process of gathering signatures. Here, the ballot question was placed on the front of Initiative 159 signature sheets. App. A, Br. of Resp’t. Thus, the ballot question is of keen importance to decision-makers — in this instance, the people — who compel the Legislature to address an issue by signing an initiative to the Legislature.

If the Legislature takes action with respect to an initiative to the Legislature, by either enacting the measure as written or placing an alternative on the ballot for the people to review, then the legislative title becomes important to legislators who must address the measure. Consequently, the legislative title is important to another set of decision-makers — the legislators — who must decide to enact an initiative to the Legislature, or place the measure, or possibly an alternative, before the voters.

By contrast, the majority believes the process of gathering signatures for an initiative to the Legislature and the legislative consideration of such a measure are discrete; the ballot question can be separately considered if the measure goes on the ballot; and the legislative title can be appropriately considered if the Legislature enacts the measure into law. The majority’s positions fail to take fully into account the important role the ballot question plays in the first instance in getting an initiative before the Legislature.

The majority’s suggestion that the proponents and opponents of the measure can challenge the Attorney General’s formulation of the official ballot title under RCW 29.79.060, if a ballot title is misleading, is hardly a *139remedy. RCW 29.79.040 indicates only that the ballot question must be "a true and impartial statement of the purpose of the measure.” The analysis to determine compliance with RCW 29.79.040 is therefore not coextensive with the analysis to determine whether or not article II, section 19 has been satisfied.

Mindful of the realities of the process by which initiatives to the Legislature are placed on the legislative agenda and of the framers’ concerns about notice to the electorate and the elimination of logrolling, see Washington Fed’n, 127 Wn.2d 544, we must consider both the ballot question and the legislative title in determining whether or not a section of an initiative to the Legislature satisfies the requirements of article II, section 19 of the Washington Constitution.

In the present case, the ballot question of Initiative 159 read: "Shall penalties in sentencing standards be increased for crimes involving a firearm, and sentences and plea agreements be public records?” App. A, Br. of Resp’t. The legislative title of Initiative 159 read: "an act relating to increasing penalties for armed crimes . . .” App. A, Br. of Resp’t. The section of Initiative 159 about which Broad-away complains is the deadly weapon enhancement in RCW 9.94A.310(3), which substantially increased the mandatory sentence for individuals convicted of certain felonies that involved a deadly weapon. That section is clearly within the ballot question or legislative title of Initiative 159.

Broadaway also argues that Initiative 159 embraces more than one subject in violation of article II, section 19. The subject of Initiative 159 is expressed in its ballot question and legislative title. The purpose of Initiative 159 was to provide "hard time for armed crime,” but the essential purpose of the measure was to increase penalties for crimes involving a firearm. Initiative 159 embraces subjects such as the imposition of the death penalty for certain crimes and other issues unrelated to increasing sentences for crimes committed with firearms ("hard time *140for armed crime”). Initiative 159 embraces more than one subject. However, Initiative 159 does contain a savings clause, and because the sections of Initiative 159 Broad-away challenges are not actually at issue in his case, we need not address their propriety under article II, section 19. State v. Thorne, 129 Wn.2d 736, 757-58, 921 P.2d 514 (1996).

We must adopt clear, realistic principles to govern the titles and contents of legislative enactments and popularly adopted measures. The majority’s determination that only the legislative title of an initiative to the Legislature is relevant when the Legislature enacts such a measure into law fails to take into consideration the reality of the process by which the measure was placed on the legislative agenda. Both the ballot question and the legislative title are relevant to the determinations of whether the title of the enactment is constitutionally adequate and whether the measure contains more than a single subject. In this case, given the section about which Broadaway complains, article II, section 19 is not violated. I therefore concur in the majority’s disposition.

Johnson, J., concurs in the result.