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GONZAGA LAW REVIEW [Vol. 44:3 However, rather than the statement specified in statute for initiatives to the people, 444 the petitions used the statutory statement for initiatives to the legislature, 445 declaring that: "We, the undersigned citizens and legal voters of the state of Washington respectfully request that this petition and the proposed measure known as Initiative Measure No. [1029] .... be transmitted to the legislature of the state of Washington at its next ensuing regular session, and we respecofully petition the legislature to enact said proposed measure into law... ."44 6 In other words, unlike the petition in Schrempp, the 1029 petition form did not contain any correct characterization of the type of initiative; rather, through its use of the wrong statutory format, it twice declared that it was a petition to the legislature rather than the people. Further, the statutory petition forms specify that initiative petitions should include a caption specifying whether the petition is for an initiative to the legislature or to the people. 447 Instead, Initiative 1029 omitted the statutory caption altogether. 448 Nothing in the petition indicates that the measure was intended to be placed before the voters rather than the legislature. 449 Only the serial number, along with implementation dates specified in the text of the initiative, would indicate to a prospective voter that the measure was intended to go directly to the ballot. 450 444. WASH. REV. CODE § 29A.72.120 (2005) ("We, the undersigned citizens and legal voters of the state of Washington, respectfully direct that the proposed measure .... be submitted to the legal voters of the State of Washington for their approval or rejection at the general election") (emphasis added). 445. Community Care, 200 P.3d at 703. Agreed Statement of Facts, supra note 440, at Ex. A. 446. WASH. REv. CODE § 29A.72.1 10 (2005) (emphasis added). Community Care, 200 P.3d at 703. 447. WASH. REv. CODE §§ 29A.72.110; 120 (petitions must be "substantially" in those formats). 448. Community Care, 200 P.3d at 703. Agreed Statement of Facts, supra note 440, at 5 & Ex. M.). 449. See Community Care, 300 P.3d at 710-11 (Fairhurst, J., dissenting) (petition contained no language directly identifying it as one to the people). Article II, section I(d) requires that all laws proposed by initiative petition-whether to the voters or to the legislature-be styled: "Be it enacted by the people of the State of Washington," so its inclusion in an initiative is not relevant to analysis of whether the initiative is of one type or another. WASH. CONST. art. I, §1(d). Initiative 1029 contains this enacting clause. Likewise, the court appeared to reason that the presence of a "BALLOT TITLE" and "BALLOT MEASURE SUMMARY" could create ambiguity about the initiative. Both initiatives to the voters and to the people must include each of these statements. WASH. REV. CODE § 29A.72.050 (2005). 450. Community Care, 200 P.3d at 703, 705-07. Curiously, the court seemed to assign significance to the serial number. Id. at 703, 705. While the respective serial numbering may be relevant to the Secretary of State's administrative responsibilities and thus to the exercise of his discretion, it is highly unlikely to have any meaning to a voter.
2008/09] WASHINGTON'S LAW OF LAW-MAKING Notwithstanding these defects, the court refused to bar the initiative from the November 2008 ballot. 451 The petitioners in Community Care made two arguments based on the flawed text of the petition: first, the Secretary of State could not treat the initiative as one to the voters and was thus barred from placing it on the ballot; and second, the Secretary was obligated to follow the format of the petition by placing it before the Sixty-First Legislature the following January. 452 Yet because the governing statutes permit review only for rejections, not acceptances, the petitioners were forced to seek a writ of mandamus or certiorari. The court concluded that the case was "fundamentally about the secretary of state's discretion in processing initiative petitions. ' '453 As noted in Schrempp, the Secretary of State's discretion to accept the petitions is confirmed by the statutes' use of "may ' '4 54 and "substantially. ' 455 Mandamus will not lie to compel acts vested in the discretion of a state officer 4 56 absent an abuse of discretion that amounts to a failure to exercise discretion at all, 457 and the court may use its power to issue a writ of certiorari only to address quasi-judicial action for which no remedy exists. 458 Because of the ambiguities the court found in the initiative petition and text, the court concluded that the Secretary of State had a reasoned basis for exercising his discretion to accept the petitions. 459 The three-justice dissent argued that the Secretary's discretion was limited to accepting petitions that substantially complied with the statute and that the majority's ruling essentially made compliance with the statutory forms optional, "leaving the way open for those who intentionally create ambiguities for political advantage. ' A 6 ° Courts are unwilling to interpret statutes in a manner that impairs the constitutional right to enact ballot measures: these rights may not be "hampered either by technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right. ''461 The Community Care court only impliedly relied on this principle, but it specifically noted the court's restricted role in the case: "the authority 451. Community Care, 200 P.3d at 704. 452. Id. at 704-05. 453. Id at 707. 454. WASH. REv. CODE § 29A.72.160 (2005); see Community Care, 200 P.3d at 705. 455. WASH. REv. CODE § 29A.72.110 (2005); see Community Care, 200 P.3d at 705. 456. Vangor v. Munro, 798 P.2d 1151, 1155 (Wash. 1990); Walker v. Munro, 879 P.2d 920, 925 (Wash. 1994). 457. Vangor 798 P.2dat 1155. 458. Community Care, 200 P.3d at 706-07); N. Bend Stage Line, Inc. v. Dept. of Pub. Works, 16 P.2d 206, 210-11 (Wash. 1932) (administrative decision for which no other judicial review was available); Kriedler v. Eikenberry, 766 P.2d 438, 444 (Wash. 1989). 459. Community Care, 200 P.3d at 707-08. 460. Id. at 708-09, 711 (Fairhurst, J., dissenting). 461. Sudduth v. Chapman, 558 P.2d 806,808-09 (Wash. 1977).
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