Yelle v. Kramer

¶1(dissenting) — In my opinion the issues in this case are res judicata. They have all been fully and completely settled, determined and disposed of in State ex rel. Helm v. Kramer, 82 Wn.2d 307, 510 P.2d 1110.

¶2The purpose and intent of petitioner in the Helm case was exactly the same as that of the proponents of initiative measure 282, to have the people “approve or reject” at the polls “an item, section or part” of a law passed by the legislature, section 110, chapter 137, Laws of 1973, first extraordinary session.

¶3In that case the petitioner sought a writ of mandamus to compel the Secretary of State to accept for filing documents tendered to him for referendum so the people might “approve or reject” at the polls section 110 which provided a substantial increase in the annual compensation to be paid the elected state officials therein mentioned. The action was founded on the “referendum” portion, article 2, section 1, amendment 7, of the state constitution, which provides:

(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may he necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, . . .

¶4(Italics mine.)

¶5*480The exceptions mentioned in this paragraph of the constitution are frequently referred to as “emergency provisions.” This has doubtless come about by reason of the word “immediate.” But the word “immediate” is not controlling. These are provisions that limit the use of the referendum. They restrict its use and were included for a very definite and specific reason. They must be read and given the same solemnity as the other provisions of the article.

¶6Chapter 137 contained these restrictive clauses and the court in the Helm case, by reason thereof, correctly held section 110 was not subject to referendum.

¶7The petitioner in the Helm case being thus prevented from presenting to the people the issue of the increase in compensation as provided in section 110, sought some other avenue to present the issue to the people, the use of the “initiative.”

¶8The first paragraph of article 2, section 1, amendment 7, provides:

the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls,

¶9(Italics mine.)

¶10Paragraph (a) that immediately follows reaffirms the initiative provision in the first paragraph and provides the mechanics for its use.

¶11The powers of initiative and referendum are separate and distinct. By the “initiative” the people “propose bills, laws, and . . . enact or reject the same at the polls.” By the “referendum” the people may order it on “any act, bill, law, or any part thereof passed by the legislature” with certain enumerated exceptions. The purpose of the referendum is for the people to determine at the polls whether they approve or reject an “act, bill, law, or any part thereof passed by the legislature.”

¶12To determine the issue of whether initiative 282 is an unconstitutional use of the initiative process and is in fact, a referendum we must look to the substance, purpose and intent of the proponents.

¶13*481In State ex rel. Mullen v. Howell, 107 Wash. 167, 181 P. 920, the court, in examining the provisions of article 2, section 1, having specific reference to the referendum provision, said:

"The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty — indeed, are under a solemn duty to look, to the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority.” Mugler v. Kansas, 123 U.S. 623, 661.

¶14(Italics mine.)

¶15Looking then at the substance of initiative 282 we find it nothing more than a pretense in an attempt to use the initiative as a referendum to avoid the emergency or rather restrictive provision of the referendum provisions of the constitution.

¶16It is argued that initiative 282 is a “bill or law” as those terms are used in the initiative provisions of the constitution; that it is something new or different from section 110. I don’t find it so. The provisions for increases in initiative 282 are the same as in section 110 but in a lesser amount. Initiative 282 is a reenactment of section 110 but “rejecting” any increase over and above 5.5 percent. That this was the purpose and intent of the proponents of initiative 282 is demonstrated in section 1, wherein the proposed respective salaries are set forth:

¶17Schedule of Annual Salaries Executive Officials

¶18Governor......................... $ ((47,300)) 34.300

¶19Lieutenant Governor ............. $ ((32,000)) 10,600

¶20Attorney General................. $ ((-37,959-)) 24.300

¶21Superintendent of Public Instruction $ ((37,950)) 23,750

¶22Commissioner of Public Lands...... $ ((■33-600')) 21,100

¶23Auditor .......................... $((397793)) 17.400

¶24Insurance Commissioner .......... $ ((29,700)) 17.400

¶25Secretary of State................. $ ((26,400)) 15.800

¶26Treasurer ........................ $ ( (38t499) ) 15.800

¶27*482Judicial Officials

¶2834,825 Supreme Court ....:.............. $ ( (■0'8t&80-) )

¶2931,650 Court of Appeals................... $ ((31,650-))

¶3028,500 Superior Court ................... $( ('3-27000))

¶31Full Time District Court Judges: Provided, That no funds shall be allocated from this appropriation to implement these salary

¶3223,250 increases ......................... $((26,000))

¶33Legislative Officials

¶34Legislators ....................... $((10,560)) 3,800

¶35It will be noted the increases provided in section 110 are set forth and stricken and a lesser amount set opposite the name of each officer. Presumably, the lesser amount is 5.5 percent above the old schedule. This is clearly a proposal to present to the people an opportunity to determine at the polls a rejection or approval of a section of a law passed by the legislature; clearly a referendum function. Initiative 282 added nothing, it gave nothing that was not provided in section 110.

¶36To carry this thought a step further, suppose initiative 282 had provided section 110 be amended by striking the increases therein provided. It is obvious such a proposal would be a referendum and subject to the restrictive clauses of the referendum provision. Suppose it had provided section 110 be amended by providing the annual compensation of these officials should be increased by 1 cent. It would seem clear such a proposal would be an attempt by the proponents to use the initiative process as a means of evading the restrictive provisions of the referendum. An attempt by the initiative process to approve or reject a part of an act passed by the legislature. It still would have all the ear marks of a referendum. There is no magic in the 5.5 percent increase provided in initiative 282. It is still a proposal to present to the people for their determination at the polls the question of whether they approve or reject a section of an act passed by the legislature — an attempt by the initiative process to circumvent the restrictive clause of the referendum. To hold otherwise is to open an avenue *483whereby “any act, bill [or] law” passed by the legislature may be presented to the people as an initiative by adding the simplest phrase or clause calling it an amendment. This would make the restrictive clauses of the referendum meaningless. Such was not the intent and purpose of the people in the adoption of amendment 7 and subsequent amendments thereto.

¶37The order restraining the State Treasurer from paying salaries pursuant to section 110 should be vacated. The writ of prohibition against the Secretary of State should have been granted.

¶39(dissenting) — I concur generally in Judge Wicks’ dissent, and would add the following:

¶40The primary question in this case is a constitutional one. Initiatives, including initiative 282, are subject to the same scrutiny and limitations as any other enactment, and have at times been declared unconstitutional. See State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916); Culliton v. Chase, 174 Wash. 363, 25 P.2d 81 (1933); Gilman v. State Tax Comm'n 32 Wn.2d 480, 202 P.2d 443 (1949); Ford v. Logan, 79 Wn.2d 147, 483 P.2d 1247 (1971).

¶41The appropriation bill, chapter 137, first extraordinary session, passed by the state Senate and House of Representatives, and signed by the Governor April 24, 1973, substantially embodied the recommendations of the duly and legally appointed state committee on salaries created by statute. RCW 43.03.027-.047. See State ex rel. Helm v. Kramer, 82 Wn.2d 307, 510 P.2d 1110 (1973), for personnel of the committee. This committee was created and acted before the convening of the legislature that passed chapter 137, including section 110, against which initiative 282 was directed. The measure contained the usual emergency clause found in budget bills, providing for the support and orderly functioning of state government.

¶42If there is a conflict between the constitutional power *484specifically vested in the duly elected state legislature, pursuant to amendment 20 of the state constitution, and the nebulous reservation of power claimed by the proponents of initiative 282, within the framework, background and history of this case (and there is: amendment 7, article 2, section 1(a) and (b) state constitution), the latter must give way to the former; the latter being an unconstitutional attempt, under the guise of an initiative, to deprive the constitutional legislature of its specific constitutional power, by a tortuous interpretation and application of parts of amendment 7. Kramerhas held this cannot be done by referendum. Does greater constitutional power repose in the approach by initiative?

¶43My answer is no. It is an attempt to do the same thing. Where will it end? It should end here. We should hold that the specificity of the constitutional power vested in the duly elected legislature clearly outweighs, and is paramount, in this case, under any interpretation of the law, to the power claimed reserved under the initiative provisions of the state constitution.

¶44To vacillate and procrastinate at this stage is to invite chaos and confusion. The majority seems willing to take that chance. I do not think we should.

¶45That uncertainty exists in the minds of the court majority is reflected in a quotation from their opinion:

We reject the contention . . . that appropriate constitutional provisions do not apply to initiatives. To do otherwise would be a recognition that we have an initiative process “governed by men and not by law.” Nothing in this opinion is to be interpreted as opening a Pandora’s box, releasing a runaway, uncontrolled initiative process.

¶46In my opinion that is just what the majority is doing, notwithstanding the disclaimer. The latent fear or possibility implied in the foregoing quotation has become a reality, and an invitation to do likewise in reference to any act of the legislature pertaining to the budget, even though the latter in many instances is predicated upon the recommendation, through the Governor, of a statutorily appointed *485state committee on salaries. It means that through an initiative, the whole or any part of a given budget dealing with salaries can be amended or nullified. This will result in the breakdown of the entire legislative system, an end surely not contemplated or intended by those who desire to maintain the orderly, albeit, sometimes slow, processes of the law.

¶47To use the power of the initiative process in that way, in my opinion, is unconstitutional, and should not be sanctioned by this court in this case.

¶48I dissent.