Fritz v. Gorton

Rosellini, J.

(dissenting) — I dissent. The majority relies *329on Senior Citizens League v. Department of Social Security, 38 Wn.2d 142, 228 P.2d 478 (1951), as authority that Const. art. 2, § 19, providing that no bill shall embrace more than one subject and that shall be expressed in the title, does not apply to initiative measures. This holding came at the conclusion of a 29-page decision dealing with 23 other holdings, without discussing or considering Const. art. 2, § 1, which provides, in part:

[T]he people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature . . .

It did not discuss Const. art. 2, § 19, which was included in the Washington State Constitution when it was first adopted in 1889 and predates amendment 7, which adopted article 2, section 1, in its present form in November 1912. Thus, the legislature, in proposing the amendment to the people and the people in enacting it, must be presumed to have been aware of the existence and applicability of article 2, section 19.

It is an elementary principle of constitutional and statutory construction that provisions on the same subject are to be construed in conjunction with each other. 2A J. Sutherland, Statutory Construction § 51.02 (4th ed. C. Sands 1973), states:

In terms of legislative intent, it is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter, wherefore it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be construed together.

(Footnotes omitted.)

Along these same lines, the court in Hatzenbuhler v. Harrison, 49 Wn.2d 691, 697, 306 P.2d 745 (1957), stated:

Another rule of statutory construction which the courts observe is that the law-making body is presumed to be familiar not only with its own prior legislation *330relating to the subject of legislation, but also with the court decisions construing such former legislation.

See also Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948); In re Levy, 23 Wn.2d 607, 161 P.2d 651, 162 A.L.R. 805 (1945). See also State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 P. 1047 (1908).

A bill is a draft of a law to be enacted by the legislature or by the electors via the initiative process.

It is important to note that amendment 7 was an amendment to article 2 of the constitution which relates to legislative authority. Amendment 7 did not establish a separate special constitutional article relating to initiatives; rather it positioned initiative powers within 'article 2. Nothing in amendment 7 suggests that the various provisions under article 2 which would normally be applicable to legislation were not to apply to legislation adopted by the initiative process. In fact, the reverse should be assumed.

The validity of the holding is further questionable when the initiative provision of our constitution was amended a year later in 1952. Constitutional amendment 26 provides that

[n]o act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment . . .

(Italics mine.)

I would reverse the dicta in Senior Citizens League v. Department of Social Security, supra, inasmuch as it holds that article 2, section 19, does not apply to initiatives.

In any event, our case law is contra and the majority of other states which have a similar provision to article 2, section 19, have held that it applies to initiative process. Forty-one other states have such provisions and of the seven states where the question of applicability of the provision to initiatives has been raised, only once has the provision been held inapplicable to initiatives.

The California Supreme Court, in Wallace v. Zinman, 200 *331Cal. 585, 591-92, 254 P. 946, 62 A.L.R. 1341 (1927) (cited with approval in State ex rel. Seymour v. Superior Court, 168 Wash. 361, 12 P.2d 394 (1932)), stated:

There can be no just reason assigned for holding that this provision [similar to article 2, section 19] is mandatory when applied to statutes passed regularly by the legislature and at the same time inapplicable to statutes initiated by petition and passed by direct vote of the people.

In the case of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39 (1949), an initiative to prohibit parking meters on the streets and highways of the state was struck down under the double subject and title provisions of that state.

In the case of Leininger v. Secretary of State, 316 Mich. 644, 26 N.W.2d 348 (1947), the court granted a writ of prohibition against the Secretary of State from certifying an initiative for submission to the people regarding fair employment practices, stating the title of the initiative violated the Michigan Constitution of 1908, article 5, section 21, which provided that “no law shall embrace more than one object, which shall be expressed in its title.” In the case of State ex rel. Steen v. Murray, 144 Mont. 61, 394 P.2d 761 (1964), the court struck down an initiative, saying at page 66:

Even if we were to consider it in separate parts, it would fail because of Article V, .§ 23, of the Constitution of Montana [single subject provision], because it would contain more than one subject . . .

In our neighboring state of Oregon, in State ex rel. v. Richardson, 48 Ore. 309, 319, 85 P. 225 (1906), it was alleged that the title of the initiative was not sufficient. The court held the title sufficient, but clearly held that the constitution’s one subject provision was applicable to initiatives. The court’s analysis of the initiative process is instructive:

A great number of voters undoubtedly have a superficial knowledge of proposed laws to be voted upon, which is derived from newspaper comments or from conversation with their associates. We think the assertion may safely *332be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage. It is important, therefore, that the title to laws proposed in the manner indicated should strictly comply with the constitutional requirement.

(Italics mine.)

Only one state, Arizona, has held otherwise, determining that the single subject limitation does not apply to initiatives without examining the rationale underlying the constitutional requirement. Iman v. Bolin, 98 Ariz. 358, 404 P.2d 705 (1965).

Const. art. 2, § 19, provides:

No bill shall embrace more than one subject, and that shall be expressed in the title.

There are two bases for article 2, section 19. First, it is an effort to restrict the scope of legislative proposals so that their contents will be evident to legislators and the public and, secondly, so that neither legislators or the public will be required to support a distasteful measure because it is attached to a meritorious one.

This court has enunciated these purposes on a number of occasions.

The purposes of [article 2, section 19] are threefold: (1) to protect and enlighten the members of the legislature against provisions in bills of which the titles give no intimation; (2) to apprise the people, through such publication of legislative proceedings as is usually made, concerning the subjects of legislation that are being considered; and (3) to prevent hodge-podge or log-rolling legislation.

(Italics mine.) State ex rel. Washington Toll Bridge Authority v. Yelle, 32 Wn.2d 13, 24, 200 P.2d 467 (1948). *333Accord, YMCA v. State, 62 Wn.2d 504, 383 P.2d 497 (1963); Power, Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173 (1951).

The term “logrolling” was defined in State v. Waggoner, 80 Wn.2d 7, 9, 490 P.2d 1308 (1971), as

the practice of drafting and submitting a bill to the legislature in such a form that a legislator is required to vote for something of which he disapproves in order to obtain approval of another unrelated law.

Both policies behind article 2, section 19, are present with even stronger force when considering initiative measures, as in legislative enactment by the Senate and House.

Logrolling is an even greater danger to the democratic exercise of power in the initiative process. What is to prevent an individual or a group from including mildly objectionable legislation — that is, legislation which might benefit a small group and is mildly disfavored by the electorate as a whole — in an initiative measure which includes other legislation which has great popular appeal? In the legislature the committee process assures that such a provision will be detected; the amendment process provides the remedy. The legislature can delete parts of a proposal it disfavors; the electorate is faced with a Hobson’s choice: reject what it likes or adopt what it dislikes. Only article 2, section 19, preserves the integrity of the initiative process.

As the California Supreme Court pointed out,

[ejvery reason going to protect the public from imposition by undesignated matter in the title of an act of the legislature obtains with like if not greater force to a measure that is to be voted upon by the people. It is common knowledge that an initiative measure is originated by some organization or a small group of people and they circulate a petition requiring the signature of only eight per cent of the voters; that the measure is then placed upon the ballot and a large number of the population, not knowing what the context of the act is, rely solely upon its title as a guide to intelligent voting thereon.

Wallace v. Zinman, supra at 592. Accord, State ex rel. v. Richardson, supra (voters have a superficial knowledge of ballot issues).

*334The conclusion that article 2, section 19, applies to legislation by initiative is supported by numerous cases decided in Washington in which the Supreme Court has applied this section to legislation by initiative.

In State ex rel. Seymour v. Superior Court, supra, the state brought an action to restrain the Secretary of State from filing and canvassing petitions concerning initiative measure No. 62, “generally referred to as the ‘game control bill.’ ” The relator’s argument was that the ballot title prepared by the Attorney General did not express and give a true and impartial statement of the purpose of the measure because it failed to state that the measure would have the effect of abolishing the state highway department and restoring the department of taxation and examination. The court held that the ballot title prepared by the Attorney General was correct. The court, in reaching this conclusion, said:

Section [19] of Article II of the constitution of this state provides that no bill shall embrace more than one subject, and “that shall be expressed in the title.” If initiative measure No. 62 should be construed as evidencing an intent to repeal chapter 115 of the Laws of 1929, p. 246, and thus abolish the highway department, and chapter 18, section 11 of the Laws of 1925, p. 33, and section 11, chapter 280, of the laws of 1927, p. 683, and thus restore the department of taxation and examination, there is no indication in the legislative title to evidence such an intent, and to that extent it would not comply with the constitutional requirement . . .
The language (the organization and administration of the state government), when considered in connection with what follows in the title enumerating the specific departments, is insufficient to cover the repeal of the intermediate acts of 1929, 1925 and 1927, above mentioned. The cases of Anderson v. Whatcom County, 15 Wash. 47, 45 Pac. 665, 33 L. R. A. 137 [(1896)]; Percival v. Cowychee & Wide Hollow Irrigation District, 15 Wash. 480, 46 Pac. 1035 [(1896)]; and State v. Clark, 43 Wash. 664, 86 Pac. 1067 [(1906)], support the holding that the title of the measure would not be sufficient if its intent was to abolish the state highway department and restore the department of taxation and examination. There is no *335mention in the legislative title or in the body of the act of either of those departments.

(Italics mine.) State ex rel. Seymour v. Superior Court, supra at 364-65.

In 1949, two cases were decided by the Washington Supreme Court wherein the constitutional limitation of article 2, section 19, was applied to legislation by initiative. Randles v. State Liquor Control Bd., 33 Wn.2d 688, 206 P.2d 1209, 9 A.L.R.2d 846 (1949), was an action to enjoin the enforcement of Initiative 171, which, along with amendatory and supplemental legislation, was known as the Washington state liquor act. The court determined that the ballot title and legislative title of the initiative were not defective. Although article 2, section 19, was not specifically mentioned, it was the basic issue as the court in Gruen v. State Tax Comm’n, 35 Wn.2d 1, 21, 211 P.2d 651 (1949), recognized:

One of the questions presented in Randles v. Washington State Liquor Control Board, 33 Wn. (2d) 688, 670, 206 P. (2d) 1209 [(1949)], was whether the title to initiative No. 171 was sufficient to meet the requirements of Art. II, § 19. A claim was made that the title of the act was defective, in that it made no reference to taxes or discounts in favor of certain holders of licenses. We held the title was proper, in that it related to the control and regulation of the preferred license holders.

It should be observed that the applicability of article 2, section 19, to initiative measures was clearly at issue and briefed by counsel.

The requirement that all legislative proposals include no more than one subject is consistent with basic democratic principles. The requirement is designed to present clear legislative proposals to the legislature or the public and forestall the combining of issues so that ones with minimal public support are not adopted merely because they are attached to popular proposals. As the California court stated in Wallace v. Zinman, 200 Cal. 585, 254 P. 946 (1927), the evils of multifarious legislation exist at the *336voting booths as well as on the floor of the legislature. Two proposals, which do not have enough appeal on their own, may be combined by initiative petitioners in the same way such proposals may be combined by state legislators.

The Washington State Supreme Court has stated this clearly in Jones v. Centralia, 157 Wash. 194, 206, 289 P. 3 (1930):

The rule of law which prohibits the submission of several distinct and unrelated propositions, united as one in such a manner as to require the voter to accept or reject all, is salutary and reasonable, and should be enforced. Its purpose is to prevent the joining of several measures in such a manner that each, by rallying to its support those of the voters who desire its adoption, may gather votes for the group of propositions, and cause the popular measures to carry those which are unpopular and which would fail if presented to the voters separately.

The evils of logrolling in regard to ballot issues has been recognized by the Washington Supreme Court in a series of municipal bond cases.

In Blaine v. Seattle, 62 Wash. 445, 447, 114 P. 164 (1911), the court voided a municipal bond issue, which had been passed by voters, on the basis that there were eight different projects included in the proposition. The court stated that the method of submitting these projects in one proposition to the voter

and compelling him to assent to or dissent from each and all of them or lose his vote is inconsistent with the constitution and laws of the state . . .

When the Washington State Constitution was first adopted in 1889, it contained article 23, which provided that

if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such amendments separately.

This provision was in effect when amendment 7 was adopted in November 1912. The people of this state again gave recognition to this principle as recently as November 6, 1962, when amendment 37 was adopted. This amendment *337changed article 23, section 1, somewhat, but as to more than one amendment, it remained unchanged.

This is a second and important public recognition that logrolling is of highly dangerous quality to the ability of the people to govern themselves. This principle is so important it is beyond peradventure to say it does not apply to initiatives.

The purpose of such provision has been stated to

prevent an imposition upon or deceit of the public, and to afford voters freedom of choice and prevent “logrolling” —that is, to prevent voters from being required to vote for something of which they disapprove in order to register approval of other propositions tied up therewith.

(Footnotes omitted.) 16 Am Jur. 2d Constitutional Law § 37 (1964).

According to the Kansas Supreme Court in Moore v. Shanahan, 207 Kan. 645, 655-56, 486 P.2d 506 (1971),

[t]he foregoing quoted provision of Section 1 is mandatory [provision requiring separate submission to people of separate amendments], and requires a submission of proposed amendments in such manner that the electors may vote upon each amendment separately. The provision is a wise one, and is intended to prevent several separate and unrelated subjects from being submitted to the electors in the same amendment, thus forcing them to approve or reject the amendment as a whole. Likewise, it is intended to prevent burdening a meritorious proposition with a vicious one, and also to prevent a vicious proposition from having the support of the meritorious one, thus giving to the elector the right to have each separate proposition submitted to him in order that he may express his will for or against each separately, without being compelled to accept a proposition to which he is opposed, in order to have adopted a proposition which meets his favor.

See also McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909). Annot., 94 A.L.R. 1510 (1935).

There are numerous cases in which the court has struck down laws as violative of the single subject provision of article 2, section 19. It would be possible to list and de*338scribe these cases, but in analyzing them it appears that they have been decided on a case-by-case basis, based on the facts surrounding the particular situation.

The court in these cases considered the content of the statute and looked as much at the purposes of article 2, section 19, as at the language. The court in Blaine v. Seattle, supra, ruled that bonds for a bridge in the north is one subject and cannot be combined on the ballot with bonds for a bridge in the south; accord, State ex rel. Washington Toll Bridge Authority v. Yelle, 61 Wn.2d 28, 377 P.2d 466 (1962) (holding unconstitutional an act dealing with both toll bridges and ferries); Power, Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173 (1951) (appropriations measures joined to corporate income tax). In Price v. Evergreen Cemetery Co., 57 Wn.2d 352, 357 P.2d 702 (1960), regulation of cemetery endowment funds joined by amendment with a provision making it unlawful for a cemetery to refuse burial to a non-Caucasian was held to be two separate subjects.

On the other hand, it was found a single subject in many cases, State v. Waggoner, 80 Wn.2d 7, 490 P.2d 1308 (1971) (revisions to the criminal code); Water Dist. 105 v. State, 79 Wn.2d 337, 485 P.2d 66 (1971) (legal powers of water districts); Branche v. Aumiller, 147 Wash. 463, 266 P. 723 (1928) (probate code). In many of these cases it is obvious that the challenge under article 2, section 19, was an act of desperation in cases otherwise having meritorious claims that the double subject claim was far fetched.

The court’s decisions appear to turn on whether the court concludes that logrolling might have taken place. In Blaine v. Seattle, supra, it may have. In State v. Waggoner, supra, the court stated that, although the “possibility” existed that legislators would have to vote for provisions of which they disapproved in order to obtain the passage of the act, this was not, in fact, what occurred. Price v. Evergreen Cemetery Co., supra, can only be understood as a logrolling case.

Initiative 276 contains a “multitude of subjects,” including: (1) disclosure of campaign financing; (2) limitations *339on campaign spending; (3) regulation of lobbying activities; (4) regulation of grass-roots educational activities; (5) disclosure of financial affairs of elected officials; and (6) public inspection of public records.

The Official Voters’ Pamphlet refers to Initiative 276 as being “divided into four basic parts;” and the Attorney General in his December 22, 1972 opinion, states: “Initiative No. 276 ... is a comprehensive enactment consisting of four major substantive chapters.” (Italics mine.)

Furthermore, it is clear that most voters did not appreciate the breadth of Initiative 276. Some voted for it because they favored regulation of campaign financing, although they would not have voted for financial affairs disclosure on its own; others favored the regulation of lobbying activities but were unaware of the other subjects in the initiative. Most voted on “catch phrases.” If given an opportunity to pick and choose, voters tend to do so, as they did in the Washington Futures series of related bond issues.

Initiative 276 passed handily. However, without the four separate and distinct subjects being merged together, certain chapters, if not all, could not have won passage standing alone. This is a clear case of logrolling, the results of which article 2, section 19, was promulgated to combat. Support of this contention may be derived from the much narrower voter approval of referenda 24 and 25, each of which had to stand on its own merits without support from logrolling.

The Washington State Supreme Court, in determining whether measures are multifarious, has generally described its focus as the “rational unity” test. The court has determined that the single subject requirement is satisfied as long as there is some “rational unity” between the general subject and the incidental subdivisions. Water Dist. 105 v. State, supra; Kueckelhan v. Federal Old Line Ins. Co. (Mut.), 69 Wn.2d 392, 418 P.2d 443 (1966).

Initiative 276 fails the “rational unity” test. The court has only applied it in situations where the measure has had one major thrust and also contained a few incidental sub*340jects. Initiative 276 has no incidental subjects; all four chapters are major, separate and distinct. Public access to records of regulatory agencies (chapter 4) has no relationship to limitations on campaign spending (chapter 1), etc. Certainly the voters perceive these as unrelated matters.

Another test used in some jurisdictions is the past legislative practice for treating the subjects contained in the statute. If the settled legislative practice is to treat the subjects separately, the fact that they have been combined this first time suggests an effort at logrolling. M. Ruud, No law shall embrace more than one subject, 42 Minn. L. Rev. 389 (1958).

The subjects contained in Initiative 276 have in the past been treated separately. Campaign spending regulations are in RCW 29.83; legislative lobbying is now regulated in RCW 44.64; and reports of private financial affairs are now required by RCW 42.21. In fact, the legislature’s contemporaneous judgment in submitting referenda 24 and 25 as separate items reflects their consistent view that they are two subjects.

It is clear that there are several separate subjects contained in Initiative 276; they are distinct. If the initiative is allowed to stand, the combining of separate and distinct subjects and logrolling will be condoned in the initiative process. No general “subject” more defined than an amorphous phrase, like “openness in government,” can cover this bill; to permit such an “umbrella” would be to vitiate article 2, section 19.

The general purpose behind a legislative title is to call attention to the subject matter of the act so that anyone reading it may know what matter is being legislated upon. See, e.g., Randles v. State Liquor Control Bd., 33 Wn.2d 688, 206 P.2d 1209 (1949).

An initiative ballot title, of course, may suffice for the legislative title required by article 2, section 19 (Senior Citizens League v. Department of Social Security, 38 Wn.2d 142, 228 P.2d 478 (1951)), but only if it meets the constitu*341tional requirements. Most initiatives have had both, though drafters may rely upon the Attorney General to draft a broad enough ballot title if they choose. In this case, the ballot title is insufficient as a constitutional title.

The ballot title of Initiative 276 is defective in at least two ways. The general test of sufficiency is whether the title gives “sufficient notice of the object of the act.” Treffry v. Taylor, 67 Wn.2d 487, 408 P.2d 269 (1965). The title of Initiative 276 fails to give notice that numerous existing laws, and two bills also before the voters, would be repealed. While it is not necessary that an index of the act appears in the title or that the title must specify the acts being repealed, notice that repealers are included is required. See State v. Winters, 67 Wn.2d 465, 407 P.2d 988 (1965) and Maxwell v. Lancaster, 81 Wash. 602, 143 P. 157 (1914), each upholding titles which gave notices of repealers by the language “repealing certain acts.” Such language is common and accepted as required by the consistent practices of the legislature.

Further, no notice in the title was given of provisions regulating citizens’ organizations engaged in grass-roots information activities addressed to the public, rather than to the legislature. Thus an entire major category of the bill, the precise question presented in Young Americans for Freedom, Inc. v. Gorton, Supreme Court cause No. 42878, was not disclosed in the title. The only language coming close is the part of the ballot title referring to “lobbyists.” For purposes of Initiative 276 certain public information activities are defined in the act as “grass roots lobbying.” But the activities included in section 20 are certainly not what would commonly be understood by the general public as “lobbying.” See United States v. Harriss, 347 U.S. 612, 98 L. Ed. 989, 74 S. Ct. 808 (1953). The public might well understand that activities by groups such as the Young Americans for Freedom or the League of Women Voters in contacting and attempting to influence legislators would be covered as “lobbying.” But nothing in the title gave notice *342of a scope broad enough to include “programs addressed to the public.”

I would hold the act unconstitutional.

Hunter, J., concurs with Rosellini, J.