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

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GONZAGA LAW REVIEW [Vol. 44:3 courts reject their political will over perceived "technicalities." On the other hand, citizen drafters may seem indifferent to the constitution's procedural drafting obligations 389 -- obligations that were imposed to protect the voters. A. Inspecting the Spear. Pre-Ballot Review of lnitiatives A threshold question is whether an initiative may appear on the ballot at all, because opponents of initiative measures may seek to block initiatives from appearing on the ballot. Two recent cases confirm that the grounds for pre-election review of initiatives are very narrow. 390 In general, courts refrain from inquiring into the validity of an initiative qua statute before the initiative has been enacted. 39 ' Because of the preeminence of the citizens' constitutional right to the initiative process, courts decline to entertain pre-election substantive constitutional challenges. 392 One of the grounds for pre-election review was at issue in Philadelphia 11 v. Gregoire, in which the court permitted a pre-election challenge to an initiative based on the initiative's subject matter. 393 If an initiative is not legislative in nature, or if it is outside the scope of the state's law-making power, then a court may block the initiative from appearing on the ballot. Coppernoll v. Reed and Futurewise v. Reed involve challenges to initiatives under this principle. 394 In each case, the court declined to hold that the initiatives' subject matters were improper, reasoning that the challenges related to the initiatives' substantive constitutionality rather than their subjects. Denny, supra note 47; Marlowe, supra note 47. 389. For example, the sponsor of Initiative 960 included changes to statutory law that were not indicated by the offset format. Compare 2008 Wash. Sess. Laws ch. 1 § 5 with 2005 Wash. Sess. Laws ch. 72, § 5 (the former purports to amend the latter but uses slightly different language in the "base"); see also WASH. REv. CODE § 43.135.035 .(2008) (reviser's note indicates that Initiative 960, chapter 1, Laws of 2008, revised this section without use of offset format). Cf Brian Steinberg, At Work With: Representative Sonny Bono; I Got Washington, Babe, N.Y TiMEs, Mar. 1, 1995, available at 1995 WLNR 3792074, at *2-3 (while serving on the Judiciary Committee of the United States House of Representatives, Congressman Sonny Bono objected to the "legalese" used by committee members and staff; .389. Rep. Charles Schumer rejoined, "We have to talk about the law. That's what we do here. We're making laws here, not sausages."). 390. Futurewise v. Reed, 166 P.3d 708, 710 (Wash. 2007); Coppemoll v. Reed, 119 P.3d 318, 321 (Wash. 2005). 391. Coppernoll, 119 P.3d at 321; see also Futurewise, 166 P.3d at 710 ("Preelection review of initiative measures is highly disfavored.") (citing Coppernoll, 119 P.3d at 321); see generally Even, supra note 44, at 273-75. 392. Futurewise, 166 P.3d at 710 (citing Coppernoll, 119 P.3dat 321). 393. 911 P.2d 389, 394-95 (Wash.1996) (involving an initiative that proposed to establish federal direct democracy). 394. Coppernoll, 119P.3dat321;Futurewise, 166P.3dat7lO-l1.
2008/09] WASHINGTON'S LAW OF LAW-MAKING 469 In Coppernoll, opponents of a medical malpractice initiative claimed that its damage caps would have violated the state constitution's right to a jury trial as interpreted in Sofie v. Fibreboard Corp., 395 and that its restrictions on attorneys' fees would infringe on the court's exclusive power to regulate the practice of law under article IV. 3 96 Coppernoll defined subject matter challenges by stating: We carefully distinguish between review of initiatives for general constitutionality and review for being beyond the legislative power of article H, section 1 of the Washington Constitution. In adherence to our prior decisions, we therefore restrict analysis of 1-330 to determining if its "fundamental and overriding purpose" is within the state's power to enact. 39 The court thus differentiated subject matter challenges based on purported amendments to the constitution from challenges to the substantive constitutionality of the legislation. Using this comparison, the court rejected the argument that any potentially unconstitutional legislation necessarily operates as an amendment to the 398 constitution. Futurewise involved a similar subject-matter challenge to Initiative 960. 9 The challengers' arguments included the contentions that: 1) the initiative's advisory vote requirements altered the state constitution's referendum provisions without following procedures for constitutional amendments; and 2) its supermajority vote requirements for tax increases violated article II, section 22, which establishes the voting requirements for enacting legislation. 400 As in Coppernoll, the court rejected these subject matter challenges, reasoning they were actually substantive constitutional contentions about the initiative. 4 0 ° The Futurewise Court reasoned that while an initiative may ultimately violate constitutional limitations, it is not subject to preelection review based on the argument that it conflicts with, and would therefore 402 improperly "amend," the constitution. Futurewise rejected the "subject matter exclusion" analysis used by the Alaska Supreme Court in Alaskans for Efficient Government v. State. 4 °3 In that case, the Alaska court ruled on an initiative that would have required either a three-fourths vote 404 of the legislature or a majority vote by the people to increase taxes. The Alaska 395. Sofie v. Fibreboard Corp., 771 P.2d 711, 728 (Wash. 1989); WASH. CoNsT. art. I, § 21. 396. See Coppernoll, 119 P.3dat, 324 (citing cases). 397. Id 398. Id. at 325. 399. Futurewise, 166 P.3d at 709-11. 400. Id 401. Id. at 711. 402. Id. 403. 153 P.3d 296, 300 (Alaska 2007). 404. Id. at 297.
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