I Developments in Washington's Law of Law-Making - Gonzaga ...

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GONZAGA LAW REVIEW [Vol. 44:3 joint rules of the legislature require that amendments to existing law be set forth in the offset format. If a bill-accidentally or deliberately-failed to use this format for amendatory changes, it is all but certain that such an error would be discovered either during the proofing process at the Code Reviser's Office or during committee and floor scrutiny in both houses. 3 29 Due to the relatively few statutory strictures on the process of initiative drafting, it is quite possible that an initiative-again, accidentally or deliberately-could change existing law without clearly stating so. Although the statutory initiative review process requires the sponsor to submit the initiative for the Code Reviser's review, the statutes expressly declare that the sponsor may disregard the Code Reviser's recommendations, and they do not require that the final text filed be drafted using the offset format. 330 Similarly, the statutes no not require that the initiative text printed in the petition use the offset format. The statutory system merely requires that the text printed in the Voters' Pamphlet use the offset format, 331 which means that at least in theory the text printed in the Voters' Pamphlet could differ significantly from the text printed in the initiative petitions. Even though the ultimate outcome may promote the constitutional purposes of avoiding legislative and voter confusion and disclosing legislation's effect on existing law, the difficulty with Washington Citizens Action from a legislative drafter's perspective is that the court seemed unaware that it was overruling previously accepted, though unemployed, drafting conventions and constitutionalizing a standard based on legislative convention. This new test demonstrates the difficulties with using the purposes of the constitution as a test unto themselves rather than as a basis for forming a consistent, universal judicial test. Confusingly, the court's opinion seems to accept voter confusion as a constitutional standard unto itself, as seen in the court's simultaneous reliance on 332 and rejection of the Voters' Pamphlet. The text of the initiative was set the law."). 329. Cf Talmadge, The Initiative Process, supra note 49, at 1019 (bills should receive public hearings and are publicly debated and amended carefully); Marlowe, supra note 47, at 1040-42 (bicameral committee hearing and amendment process promote perfection of bills through amendment process). 330. Initiative sponsors must submit their proposal to the Code Reviser for review, but sponsors are not obligated to accept the Code Reviser's formatting recommendations. WASH. REV. CODE § 29A.72.020 (2008), The initiative text circulated with the petition need only be a "full, true, and correct" copy of the document filed with the Secretary of State by the sponsor after the Code Reviser's review. WASH. REV. CODE §§ 29A.72.020, -.100 (2008). Theoretically, this latter document may be written on the back of a napkin. In other words, there is no statutory requirement that filed initiatives or printed petitions use the offset format. For example, the text printed with the petition might simply omit language stricken from the code, rather than showing it enclosed in double parentheses with strikeout font as required by the offset format and RCW 29A.32.080. 331. WASH. REv. CODE § 29A.32.070 (10) (2008). 332. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492-93 (Wash. 2007) (many voters do not read Voters' Pamphlet); id. at 495-96 (text as printed in Voters' Pamphlet misled voters).
2008/091 WASHINGTON'S LAW OF LAW-MAKING forth in the Voters' Pamphlet as required by statute. 333 Only the ballot measure question is printed on the ballot itself-the text of the initiative is not. 334 On the one hand, the court rejected arguments that explanatory statements in the Voters' Pamphlet cured any confusion about the state of the law, ... reasoning ..,,335 that "many voters do not read the Voters' Pamphlet when evaluating an initiative or referendum. On the other hand, the court held that the allegedly flawed text of the initiative-found in the supposedly unread Voters' Pamphlet-was sufficient to mislead the voters in a way that violated article H, section 37.336 Needless to say, the text of the initiative must control over any statements in the Voters' Pamphlet. 337 Yet the text of the initiative was perfectly clear that the initiative would adopt a limit measure based on one percent, as was the ballot title. The court's rather vague standard based on the risk of voter confusion could also call into question amendments that set forth affected sections in whole, with amendments properly indicated by offset formatting, but are nonetheless difficult to understand. Due to the complexity of the code and the way in which sections of code relate to each other, many measures would be impenetrable to the average reader, whether citizen or legislator, absent further statutory or other explanatory context. For example, a change to a definition of "retail sale" in RCW 82.04.050 may mean that an activity will be subject to a higher business and occupation tax. 33 8 Read out of context, deletion of an activity from this definition might paradoxically appear to be a tax decrease rather than a tax increase. This result will not be immediately apparent from the text of the amended section, even when the section is set forth in full with formatted amendments, but it does not follow that a confusing statute violates article H, section 37's requirement that amended statutes be set forth in full. F. Article II, Section 37 Now Applies to Judicially Created Law Washington Citizens Action expanded article H, section 37 by applying it to judge-made law. In its attempt to protect the voters from misleading ballot measures, the court failed to fully recognize that article II, section 37 addresses statutory law, not 333. WASH. REv. CODE § 29A.32.070(10). The text must also appear in the initiative petition. WASH. REV. CODE § 29A.72.100 (2008). 334. WASH. REv. CODE § 29A.72.290 (2008) (only serial number and ballot title appear on ballot); § 29A.72.050 (2008) (ballot title consists of subject matter statement, concise description, and question). 335. Wash. Citizens Action of Wash., 171 P.3d at 492-93. The dissent merely argued that the voters could not have been confused, because the ballot title and text were clear, and because the Voters' Pamphlet explained the state of the law. Id at 496-97 (Johnson C., J., dissenting). 336. Id at 496. 337. Cf Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 780 (Wash. 2000) (in the event of ambiguity in an initiative, the court may consider statements in the Voters' Pamphlet to determine legislative intent). 338. WASH. REv. CODE § 82.04.050 (2008).
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