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How the state might spare public, businesses the initiative confusion

After businesses have spent already millions, Washington's high court is about to review the voter-approved measure disbanding Washington's liquor store system. Some states have courts review measures before a public vote. Does California have a better idea?
Washington state's current Supreme Court justices

Washington state's current Supreme Court justices State of Washington

New business opportunities will open with voters' decision to end the state liquor monopoly.

New business opportunities will open with voters' decision to end the state liquor monopoly. PezWerewolf/Flickr

In ordinary life, people generally avoid spending lots of time and money preparing for a big change they know may not occur. But when it comes to ballot initiatives approved by Washington voters, they don’t have that option.

As soon as voters overwhelmingly passed I-1183 in November to privatize liquor sales and deregulate wine sales, a wide range of business groups started scrambling to get ready for the new law’s implementation — even though there was immediate uncertainty about it surviving a constitutional test in the courts.

Other states have a remedy for this, in the form of some type of constitutional review before initiatives are placed on the ballot. Why not Washington, which established the system for letting voters directly approve statutes exactly 100 years ago? Determining the constitutionality of an initiative before it goes on the ballot also could save sponsors and opponents a ton of money. Costco alone spent about $19 million bankrolling I-1183.

“A lot of the initiatives create a lot of uncertainty and get litigated,” said Rep. Jamie Pedersen (D-Seattle), chairman of the House judiciary committee. “As a policy matter, it would be a great idea to have prior constitutional review.”

On Thursday, the state Supreme Court will hear arguments in a lawsuit challenging the constitutionality of I-1183. The labor unions and other groups opposing the initiative say its sweeping changes, including a new $10 million public safety fund, violate the state constitution’s requirement that “no bill shall embrace more than one subject.” There is a real possibility the court will strike down the law, though some experts say the challengers face an uphill legal fight.

The Supreme Court previously has struck down voter-passed initiatives based on the single-subject rule, including overturning Tim Eyman initiatives limiting license tab fees and capping property tax increases in 2000 and 2001. The Legislature later re-enacted a version of the license tab measure.

A decision invalidating I-1183 would leave consumers, state regulators, liquor store employees, retailers, spirits and wine producers, distributors, restaurants, and other businesses in confusion and disarray. State liquor stores already have been auctioned off, their employees have left for other jobs, and supermarkets and other retailers have reorganized their stores to start selling liquor on June 1. Other players have laid plans to do business under the new rules, including retail-to-retail sales of liquor and wine and volume discounting, which previously were prohibited. Time and money would be squandered if the law is overturned.

To save everyone all this trouble, why doesn’t Washington require constitutional review of ballot initiatives before they go to voters, as other states do?

In Florida, for instance, the state Supreme Court must vet every ballot initiative to amend the constitution before it is presented to voters. The court examines whether the initiative got enough signatures, its title and summary are accurate, and it meets the single-subject test. The court has blocked a number of measures from reaching voters, including the funding portion of a major Everglades cleanup initiative, according to Bob Jarvis, a law professor at Nova Southeastern University law school near Fort Lauderdale.

Similarly, in Massachusetts, the Attorney General decides before an initiative goes on the ballot whether its meets the single-subject and other constitutional criteria. If the AG refuses to certify the measure, that decision can be appealed to the state Supreme Court, which has final say over whether the initiative goes on the ballot.

In Washington, the state Supreme Court has rarely exercised prior review, according to Hugh Spitzer, an affiliate professor of law at the University of Washington Law School. A notable exception occurred in 1996, when the court blocked a ballot initiative calling for the state to ask Congress to call a constitutional convention to consider establishing a national referendum system and ultimately convene a world meeting to discuss global issues. The court held that the measure was outside the scope of the initiative process.


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Comments:

Posted Wed, May 16, 12:17 p.m. Inappropriate

I think this is a good idea. Review them before they're voted on. And yeah, if the WA Supreme Court knocks I-1183 down, they'll be in deep trouble with the voters.

NotFan

Posted Wed, May 16, 12:59 p.m. Inappropriate

If there are case/controversy or "ripeness" concerns with pre-passage review, what about a statutory solution that prohibits initiatives from appearing on the ballot if they "embrace more than one subject"? That statute could then give someone a hook to challenge the initiative in the pre-vote stage. Some thoughts on that here: http://ziffblog.wordpress.com/2012/05/16/thoughts-on-reform-of-the-washington-initiative-process/

Posted Wed, May 16, 1:35 p.m. Inappropriate

Watch out for "progressive" attempts to "reform" the process. I agree with vetting the constitutionality of the language, but when the "progressives" talk "reform," to me that is code for blocking Tim Eyeman, who they hate with a passion, along with the consistent majorities who frustrate "progressive" attempts to raise taxes.

NotFan

Posted Wed, May 16, 1:46 p.m. Inappropriate

David, the state constitution already prohibits ballot initiatives and legislative bills from embracing more than one subject. But generally Washington state courts still won't consider a pre-vote review because of the ripeness issue, as well as other issues I didn't get into such as separation of powers and conservation of judicial resources. As Rep. Pedersen said, it might well take a constitutional amendment to mandate prior judicial review. Given the powerful forces in support of ballot initiatives, passing such an amendment seems unlikely.

Posted Wed, May 16, 2:43 p.m. Inappropriate

It's not "anti-initiative" to have a constitutional review at the outset. The one-subject rule needs clarification, because we've had "progressives" raise that particular objection whenever the voters don't behave as the "progressives" desire.

NotFan

Posted Wed, May 16, 3:54 p.m. Inappropriate

I definitely agree that it might take an amendment. But I was just thinking that perhaps the legislature could force the ripeness issue, without an amendment, by creating certain statutory requirements for ballot initiatives that mirror the constitutional requirements for which we'd want pre-vote review. That might be enough of a hook to get the Superior Court to hear a challenge. Also, the article seems to reference Rep. Pederson's views regarding mandatory Supreme Court review of ballot initiatives. Mandatory Supreme Court review is pretty drastic. I imagine we would be much more likely to get some lesser reform/review than that without the need for an amendment. (I get more in depth on this stuff here: http://ziffblog.wordpress.com/2012/05/16/thoughts-on-reform-of-the-washington-initiative-process/ )

Posted Thu, May 17, 7:18 a.m. Inappropriate

The legislature routinely passes bills that embrace a plethora of issues within a broad topic area; education reform, for example. And operating or capital budgets that have pages of provisos affecting many different programs. Sometimes the budget has been used to totally eliminate programs - through repeal, not just defunding. Many separate actions can fit under either rubric.

Should we ask the Supremes to review the constitutionality of every law contemplated by the legislature? If not, why review every prospective law contemplated by the people sitting as a legislature?

Initiatives are easy to change. While a legislative supermajority is required for the first two years after passage, only a simple majority is needed after that. So embracing a draconian process to try and stop the people from voting on issues of interest to them might be a solution in search of a problem.

Posted Thu, May 17, 1:02 p.m. Inappropriate

Excuse me, but Costco did not spend $19 million dollars of its money on this initiative. Costco increased the membership dues in order to fund the initiative. We the members paid. Just as always, corporations spend our money for their political ends, we the consumers get stuck with the bill.

camanomom

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