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

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?

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.

Experts say that while prior judicial review of ballot initiatives might solve certain problems, it creates others. A major drawback is that American courts generally avoid ruling on the constitutionality of legislation until it has been passed and the issues are ripe for adjudication. For that reason, even if the Washington state Legislature passed a law mandating the Supreme Court to review ballot initiatives, the court could vacate it as unconstitutional. It might take a state constitutional amendment to establish prior judicial review, Pedersen said.

There’s also a big political problem. Powerful individuals and groups who regularly sponsor initiatives, including Tim Eyman, undoubtedly would argue that prior judicial review defeats the purpose of the citizen initiative process by imposing a costly new litigation barrier to getting measures on the ballot. “It would be a huge burden to people who want to exercise initiative power,” Pedersen said.

That’s why Spitzer prefers California’s non-judicial approach. There, a state agency called the Office of Legislative Counsel prepares an objective, nonpartisan analysis of every proposed ballot initiative. Besides evaluating the financial impact of the proposal, the counsel’s office examines any potential constitutional problems, and reports its non-binding findings to the initiative sponsor. Some sponsors have withdrawn their proposal after seeing the report. If the initiative goes forward, voters can read the counsel’s office findings in their voter’s pamphlet.

Spitzer, whose firm represents Costco, has long proposed that Washington adopt California’s model. “I think it would be very helpful to provide disclosure to legislators and voters of potential constitutional defects in proposed legislation,” he said. “The Legislature is able to do that through very good lawyers on their staff. But the people don’t have access to that kind of nonpartisan advice.”

In the meantime, Washington businesses and consumers will have to live with continued uncertainty in buying and selling wine and spirits. Mike Reitz, general counsel for the Freedom Foundation, a libertarian-leaning research group in Olympia, said there’s no telling when the Supreme Court will rule on I-1183, though he thinks the justices will uphold the measure.

The court could issue a brief order before the June 1 implementation of private liquor sales, followed later by a full written opinion, he speculated. Or it could wait months to say anything, long after the law has taken complete effect. Even if the justices think the law is unconstitutional, he added, they probably will realize “there’s no way to get the cow back in the barn.”

A broader concern is that throwing out a ballot measure approved by 59 percent of voters might further undermine public confidence in the government and the courts. “Most people don’t understand civics any more,” Spitzer said. “It makes them angry when laws they voted for get overturned by the courts." 


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