Rousso v. Meyers

¶1(concurring specially) — While I have signed Judge Weaver’s concurring opinion, it seems to me that an analysis of the Initiative and Referendum Amendments (7, 26, 30, and 36) and our statutes should be made to indicate where changes or additions are necessary, at least so far as referendums are concerned.

¶2When a referendum petition has been accepted by the Secretary of State within the 90 days after the legislature has adjourned,2 it seems clear that the operation of the measure to be referred must be suspended.

¶3The period of the suspension is clear in only one of the numerous contingencies to which references are hereinafter made, i.e., if at the election the measure is approved by a majority of the votes cast thereon and if the total vote cast on such measure equals one-third of the total votes cast at such election, the measure goes into effect on and after the 30th day after said election. This is what the constitution says,3 and this court, in Wynand v. Depart*65ment of Labor & Industries (1944), 21 Wn. (2d) 805, 809, 153 P. (2d) 302, rejected the suggestion that on approval by the people it became effective as of date on which it would have been effective if there had been no referendum.

¶4The contingencies which involve the period of suspension are listed herewith so that, if clarification is deemed necessary by further amendment or legislation, it can be done all at one time and not piecemeal.

¶5A. The referendum petition may be found to lack sufficient valid signatures (presumably within the 60 days after filing allowed the Secretary of State for canvassing,4 and the additional time for reviews by the superior and supreme courts5).

¶6*66Quaere: When does the measure become effective, there being no valid referendum?

¶7B. The referendum petitions being stolen, lost or destroyed before the signatures are checked,

¶81. The Secretary of State certifies that there were sufficient valid signatures. This is the present case, and whether the measure ever becomes effective will be determined under C and D.

¶9'2. The Secretary of State certifies that there were not sufficient signatures.

¶10Quaere: What happens and when does the measure become effective?

¶113. The Secretary of State certifies that he cannot tell whether there were sufficient signatures.

¶12Quaere: What happens; does the measure become effective, and when?

¶13C. The referendum, having gone to a vote and the votes cast on such measure equaling one-third of the total votes cast at such election,

¶141. A majority approves the measure; it becomes effective on and after 30 days after the election.

¶152. A majority disapproves the measure; it never goes into effect.

¶16D. The referendum having gone to a vote and the votes cast on such measure not equaling one-third of the total votes cast at such election,

¶171. A majority approves the measure.

¶18Quaere: Does it become effective?

¶19The language of the constitution would indicate that it does not become effective. We have, in such a situation, an act passed by the legislature and approved by a majority of those who voted on it and, yet, the result is the same as though a majority had voted against it under the C-2 situation. We can but wonder whether the proviso should be applicable to referendums.

¶202. A majority disapproves the measure. (Actually, there is no difference in result between D-l and D-2.)

¶21Attempting to speak for no one but myself, it would seem that under our present constitutional provisions a referen*67dum petition having been filed by the Secretary of State, the operation of the measure sought to be referred remains suspended until either A, supra (it is determined that the petitions lack adequate voter signatures), or C-l, supra, a majority of the voters approve the measure. (The votes cast on the measure equaling one-third of the total votes cast at the election.)

¶28(concurring specially) — Despite its three-alarm context and the high decibel rating of the dissent, and despite other legal argumentation contrary to the majority, I have signed that opinion. It presents in my judgment a basically acceptable rationalization of the jurisprudential problem involved in this appeal. In other words, proceeding ever so slightly from the general to the particular, and perhaps elaborating the obvious briefly, I think the decision is a sound, necessary, and proper one. It is decided on the particular facts of this particular case; furthermore, in terms of probabilities, it seems to me quite likely this decision is sui generis.

¶29The foregoing should and would end the matter for me, except that I am concerned about some possible loose ends or inferences generated by some things said, and others perhaps unsaid, in the opinions written in the disposition of this appeal.

¶30The opinion written for the majority by Judge Rosellini states that there is a hiatus in the legislation enacted to implement the referendum provisions of the state constitution. It is implied that the legislature should have provided some alternative and practical formula for the Secretary of State to follow in certifying as to the number of voters’ signatures and the legal efficacy of referendum petitions filed with the Secretary of State, but subsequently stolen, as in the instant case, prior to completion of the mechanical process of counting and canvassing.

¶31The majority opinion in effect concludes that the courts will not permit such a legislative omission or hiatus to negative or defeat the self-executing referendum provisions of the state constitution. This is interpreted in the opinion *68by Judge Weaver (concurring in the result) as a statement by the majority that this court can and will fill the legislative void or hiatus. Judge Weaver (apparently joined by Judge Hill) takes very strong exception to the suggestion of such a possibility; but, on the other hand, concurring in the result reached by the majority, states without hesitation:

¶32“My concurrence in the result is based upon this: The factual impossibility of the Secretary of State to comply with the statutes does not, ipso facto, render the constitutional provision nugatory.

¶33“The reasons advanced by the Secretary of State in support of his certification are, I believe, sufficient in the instant case to support the trial court’s conclusion; but the decision is sui generis and should not, to my mind, be considered as judicial precedent necessarily applicable to an analogous situation.”

¶34In other words, Weaver, J., in effect, seems to be saying that the referendum petitions have been stolen; it is in fact impossible for the Secretary of State to comply explicitly with the canvassing, counting and certification requirements of the existing statutes respecting referendum petition No. 34. But the clear and inescapable inference is that, under the circumstances, the Secretary of State does not have to comply explicitly with the existing statutory provisions, and a conclusion is articulated that the certification as made by the Secretary of State is sufficient. The opinion adds that the conclusion reached should and must be limited to the particular facts in this particular case. Whether articulated or not, this is, of course, the applicable legal theory inherent in the now well recognized and accepted doctrine of stare decisis. Such a limiting statement is good sound judicial orthodoxy and caution, certainly in terms of the more popular forms of judicial discourse employed in just about any case; and I have also taken the precaution to assert this sound principle in the opening paragraph herein.

¶35But the point is, or it seems so to me, that Weaver, J., is saying precisely the same thing as Rosellini, J., but in *69slightly different language. Judge Rosellini’s statement emphasizes or relates to the inadequacy or absence of specific legislation to authorize or justify the action taken by the Secretary of State, certifying referendum No. 34 in the instant case. Judge Weaver’s statement emphasizes or relates to the fact that the petitions are no longer extant, and that the Secretary of State, consequently, cannot comply with the existing statutes; and it is thereupon concluded or decided that the courts should not permit this to defeat the people’s right to referendum under the pertinent state constitutional provisions. Neither approach nor opinion mentions, but both suggest, a possible application of the concept of substantial compliance relating to the certification action by the Secretary of State and the existing statutory requirements. Both opinions, obviously, reach an identical conclusion — that the trial court and this court should not exercise judicial discretion, interfering with and enjoining the action of the Secretary of State in certifying as to the legal adequacy of the referendum petitions. So, not only is the end result the same, but the reasoning and legal argumentation or characterization employed seem no more to me than a description of two sides of the same coin, the praiseful comment, citation and quoting of Mr. Justice Harlan to the contrary notwithstanding.

¶36In the latter connection I am tempted to confess some disenchantment with the glittering generalities of the Harlan quotation, and to observe that its last sentence seems to me inconsistent with much of the rest of the quotation, and with other portions of this ostensibly significant opus. The last sentence of the quotation reads:

¶37“ ‘. . . The stability and flexibility that our constitutional system at once possesses is largely due to our having carried over into constitutional adjudication the common-law approach to legal development.’ ”

¶38First, this sentence is a recognition of at least some inconsistency or opposing dynamics in the terms stability and flexibility when considered as working legal concepts, judicial touchstones, or constitutional qualities and characteristics. The sentence, in or out of context, is reminiscent *70of Pound’s, admittedly paradoxical but perhaps more forthright, statement that the law must be stable, yet it cannot stand still. It suggests the philosophical problem posed in the statement by Alfred North Whitehead that “The art of progress is to preserve order amid change and to preserve change amid order,” which could be applied or paraphrased to describe the nature of the judicial process, I think. Certainly, the Harlan comment about carrying over into constitutional adjudication the common-law approach to legal development seems to fall somewhat short of possible expectations. It does not analytically depreciate anything said in the majority opinion in the instant case; that is, if we are conscious of the real significance of the common-law approach and its methodology in the evolution and development of the law.6

¶39In conclusion, I will go back to my original statement. Despite the dissent and other legal argumentation contrary to the majority, I have signed that opinion because, basically, in my judgment, it is sound, necessary and proper in terms of judicial thinking and action. I reiterate; I also think the problem presented by this appeal is sui generis.