*1 I would thus affirm these convictions. JJ.,
Brachtenbach, Dore, Dimmick, concur with J. Rosellini,
Reconsideration denied June April 21, 48806-1. En [No. Banc. 1983.] Ralph Petitioner, Michael P. Farris, Munro, as Secretary State, et al,
Respondents. *2 Farris, P.
Michael pro se. Kenneth O. Eikenberry, General, Attorney and Thomas R. Bjorgen, Assistant, for respondents. challenge J. This case involves a
Brachtenbach, recently lottery. established state challenge That resulted petition in a for a lottery writ of mandamus to declare the statute compel Secretary unconstitutional of State accept petitioner's proposed filing of opposing the day statute. petition We denied the on argument, oral constitutional concluding original amendment, amendment lotteries, is con allowing stitutional exempt act is from refer enda under the terms 7th amendment. Const. art. (amend. (amend: 7). 56); 2, 1 Const. art. § The disputed legislation passed during was an extraordi nary session called Legislature Governor response budgetary to a In calling "fiscal crisis." session, requested "modify the Governor the Legislature to laws relating expenditures to the revenue and of the state." The Legislature *3 responded part by the passing state lot tery 1, 1982, bill on July codified as RCW 67.70.010-.903 (hereinafter Act). The Act lottery sys created a statewide tem under the administration of a director and a 5-member commission. The commission is "produce directed to the maximum amount of net revenues for the state consonant with dignity the of the state the general and welfare of the 67.70.040(1). people." RCW Annual revenues the gross from (1) per are to be distributed as at least follows: (2) cent paid prizes; percent to be as at least 40 to be fund; transferred to the state and no general more than 15 percent pay to for the costs of administration. RCW 67.70.040(1)(k). Farris, petitioner,
The Michael opposed the Act and attempted to have it submitted in to voters the form of a referendum. This state's referendum provisions empower people approve to laws reject passed by Legislature. 1; Trautman, Initiative Co nst. art. Referen Washington: dum in A Survey, L. 49 Wash. Rev. was submit- 7, 1982, petition an initial referendum July
On
State,
required
as
under
Secretary of
respondent
to
ted
accept
to
of State refused
Secretary
The
29.79.010.
RCW
had not
Spellman
petition
since Governor
initial
court
petition
filed
this
Petitioner
then
a
the bill.
signed
petitions
series of
mandamus,
initiated a
which
a writ of
peti-
allow
ultimately
to
parties
agreed
hearings.
peti-
This final
petition.
amended
to submit a third
tioner
an
sought
a respondent,
Spellman
tion added Governor
Act,
reiterated
injunction against enforcement
claim that
Act
was unconstitutional.
to
standing
petitioner had
The first issue is whether
Act.
Lottery
of the State
constitutionality
challenge
taxpayer,
allegedly
Petitioner
characterizes himself
a
of state
attempting
expenditure
to restrain the unlawful
authorization,
a
statutory
funds.
In
absent
Washington,
taxpayer
challenge
legality
to
standing
does not have
requests
public
he first
acts of
officers unless
proper public
bring
demands that a
official
suit on behalf
O'Brien,
Tacoma v.
taxpayers.
all
872, 876-77,
Wallgren,
Reiter v.
(1975);
P.2d 114
refused,
request
Once such a
exception to
taxpayer has
to
the suit. An
standing
bring
party
allege
a
facts
requirement
this demand
allows
would have been useless.
showing that
such
demand
case,
Wallgren, supra
Reiter v.
the instant
877-78.
upon
Attorney
Gen
request
failed to make a
petitioner
suit,
allege any facts indicating
bring
eral
and does
useless. He instead
have been
request
that such
would
Attorney
opposing
General
because the
argues that
validity
Act,
case,
it
defending
counsel
request
obviously
useless
would have been
oppose
same Act. That
Attorney
bring
General
suit to
however,
explicit holding
this court's
argument,
ignores
*4
Attorney
defending
is
against
General
though
that even
is
demand
not considered useless.
taxpayer's
suit such a
The Reiter court
Wallgren,
v.
supra
Reiter
877-78.
at
part
such a defense is
reached that
because
conclusion
the Attorney
statutory
duties,
General's
and
some
Attorney
instances
General must both prosecute and
See, e.g.,
Yelle,
State ex rel.
defend a
Troy
suit.
99,
459,
(1947);
176 P.2d
Despite petitioner's satisfy failure to standing these requirements, he raised an issue vital to the state revenue process that remained unresolved the time of suit this might have affected a measure on the November 1982 Thus, ballot. presented case issues of significant public that, interest by analogy decisions, to other allow this court to reach the In taxpayers merits. involving suits court has recognized questions standing should be analyzed in public presented. terms of the interests controversy public importance
Where a is serious immediately segments pop- affects substantial ulation commerce, finance, its outcome will have a direct bearing on
labor, industry agriculture gener- ally, questions of standing maintain an action should be given rigid less and more liberal answer.
Washington 1, Gas Natural Co. PUD 94, 96, 77 Wn.2d accord, Grant, Vovos v. (1969); 87 Wn.2d context, In P.2d 1343 recently another we decided to not dismiss a case for failure an indis- join pensable party and instead issue reached substantive presented where that interest, continuing
issue is a matter of and substantial it presents question public likely of a which is nature recur, and it provide desirable to an authoritative determination for guidance public the future officials. Cathcart-Maltby-Clearview Coun. v. Comm'ty Snohomish Cy., 96 Wn.2d That rationale is derived from some of our involving ques- decisions moot tions, e.g., re Patterson, 579 P.2d (1978), and similar considerations lead us to address presented the substantive issues here.
The initial argument Act is unconstitu amendment, lotteries, tional because the 56th which allows
\ when subjects two invalidly since it included adopted was amend- The of the 37th language to voters. submitted the subject of amendments: adoption dual prohibits ment the peo- submitted than amendment be if more one [to a in such manner they shall be submitted ple], people sepa- against for or such amendments vote rately. 23, (amend. 37). original The constitutional art. Const. § " shall
provision governing legislature lotteries stated: [t]he any lottery any divorce." Const. grant never authorize or 1972, changing adopted, art. In amendment 56 was § provisions relevant follows: any Lotteries legislature grant
The shall never divorce. prohibited except upon specifically shall be authorized sixty percent the affirmative vote of of the members notwithstanding any or, legislature house each provision Constitution, other or by a vote of approved sixty percent initiative affirmative electors thereon. voting ours.) (amend. 56). (Italics effect, In art. Const. prohibition against Legisla amendment retained divorce, granting replaced prohibi ture a but the absolute with a against tion lotteries conditional authorization. In to amendments within the multiple order constitute amendment: meaning relate to than one propositions submitted must more separate pur- at least distinct
subject, and have
two
other.
poses
dependent upon
not
or connected with each
Lister,
v.
Gottstein
The act is to the subject next issue whether process. provides referendum The state constitution for the right following to manner:
(b) power by The second reserved Referendum. referendum, people may any is the and it be ordered on act, bill, law, any by thereof part passed legisla- be except necessary such laws as ture, preservation public peace, immediate health or existing safety, support government the state and its institutions, public by petition signed by either voters, or required percentage legal by legisla- of the centum, ture as other enacted. Six but in no per bills are thousand, thirty legal case more than of the voters shall required peti- be and make a valid referendum sign tion. people or re-
(d) . initiated Any . . measure effect shall take provided as herein people ferred by majority approved law if it become the . . thereon . votes cast (d) 7). (amend. The ital
(Italics ours.)
2, 1(b),
Const. art.
§
the referendum
exceptions
language provides
icized
either an
exempt
promulgated as
process
legislation
which
institutions.
public
measure
emergency
support
consistently
as creat
analyzed
language
This court has
ex
Hoppe
State
rel.
ing separate
exceptions,
and distinct
Meyers,
This issue reconciling amendment's with 7th requirements enactment amendment's *7 exceptions to referenda. Petitioner would "reconcile" the to by interpreting simply amendments the 56th amendment of repeal exceptions. the 7th amendment The construction amendments, however, quite these is not so literal. two the primary Petitioner's is that unless argument is inter of the 56th amendment "notwithstanding" clause referendum, preted paramount a lan grant right Admittedly, provisions constitutional guage meaningless. See Darrin interpreted shall not be as mere redundancies. (1975). Gould, v. 859, 871, P.2d It is also 85 882 540 statutes, constitution, be con like should correct that Sim portion superfluous. no is rendered strued so that Comm'n, P.2d State Parks & Rec. 90 Wn.2d (1978). however, are in also correct Respondents, analyzed legislation has arguing this court includes clauses generally repealing provisions, inconsistent may and determined that such clauses be as sur- identified effect. Port Seattle v. plusage given independent no of Comm'n, Transp. State Utils. & 798-800, 92 Wn.2d analyzing repealing legislation, In in neces- language it is i.e., sary identify initially the type repeal employed, of express implied, scope and then to determine of A repeal. repeal clause which does not an express contain what it is designating repealing, such the 56th amend- provision, ment be analyzed repeal by implica- must Sands, Statutory (4th Construction tion. 1A C. 23.07-09 §§ 1972). Repeals by implication ed. law are favored at be if: only and will found
(1) the later act covers the entire subject matter itself, legislation, complete evidently earlier and is supersede prior intended to on legislation subject; with, are so clearly two acts inconsistent repugnant ciled and both construction. to, they each other that cannot recon- be fair
given effect and reasonable Department U.S. Oil & Ecology, Co. Ref. Considering part first above,
test quoted it seems clear that the 56th amendment amendment, was not supersede intended to the 7th nor it does cover the entire subject prior provi- matter since sions the earlier amendment also included the divorce provisions. Considering test, it is part second possible to the provisions reconcile of both amendments each give a fair and reasonable construction. provisions,
To reconcile these 56th amendment "notwithstanding" only to override clause be read con general simple majority requirement for referenda amendment, tained to override two but not sense, exceptions. replaces the later amendment "super- simple majority requirements percent with a
335
interpretation
primary guide
majority".
of consti-
A
to the
history.
legislative
provisions
ex rel. PUD
State
is
tutional
(1947).
Wylie,
The
113, 127,
The bill an clause contained purportedly exempting This has it from referendum.1 court interpreted they exceptions as if to that amendment read: [except] necessary the immediate such laws as be
preservation public peace, safety, [or] health or support government. . . of the state Hoppe Meyers, 326, 320, State ex rel. explained appar- "or" that the word court ently inadvertently, phrase so been was had omitted interpreted consistently though it had not been omitted. preservation necessary 1 The stated: "This act is for the immediate clause health, public peace, safety, support government and its of the state 1982, existing public institutions, immediately." Laws 2d shall effect take Sess., p. Ex. ch. Kramer, See also State ex rel. Helm v. 312- State rel. Blakeslee v. (1973); ex Clau *9 sen, 85 260, (1915). P. An early Wash. 148 28 decision pro vided interpretation: the reasons for this years legislature
Several before the submitted [amend- . ment . . people had the ini- Oregon adopted 7] tiative practically and referendum with limitations. no reads, Their as "except necessary constitution to laws for preservation public health, the immediate peace, safety." or that,
It knowledge was matter of common under this legislation, unbridled license to refer had been denied university state benefit appropriation of an for its . . support and maintenance .
... the people We well assume that of this state had intention of falling Oregon no into the error that had . made . .
State v. Clausen, supra ex rel. Blakeslee at 267. adher- distinction, ence original policy to that this court consis- tently held that 7th has amendment contains two separate exceptions right and distinct of referendum. Kramer, State ex Helm supra rel. v. Moreover, at 312. exception, necessary support second gov- "for the of state ernment", require does not an immediacy either emer- ex Kramer, State rel. Helm v. supra at State ex gency. 312; Clausen, rel. Blakeslee v. supra at 274; Trautman, at 73. Also, measures; is if support appropriation not limited to it State generates revenue for the state it is deemed support. Hinkle, ex rel. Reiter v. 657-60, 161 P. Wash. 297 1071 (1931). recently
This court to a reiterated its commitment broad "support" interpreting definition of the state constitu- Gardner, Ballasiotes v. tion. 97 642 P.2d (1982). mentioned, purpose As the Act primary is "maximum produce of net amount revenues to the 67.70.040(1). state." RCW Petitioner contends that the Act support institutions, does existing only sup- not state but See State ports institution, a new lottery commission. Hutchinson, ex rel. Burt 72, 75-76, Wash. pur simply misconstrues argument That revenue for the produce it designed of the Act:
pose existing supports all of the general fund which turn state certainly "nec are Similarly, these funds state institutions. required under government essary" support for 1(b). art. of Const. analysis this court's most recent Gardner, hold supra Accordingly, we Ballasiotes "support" meaning act is within the subject the 7th amendment and is exception to process. fees denied request attorney Finally, respondents' clearly so unfounded claims are not petitioner's because Kott- PUD 1 v. to demonstrate "bad faith wantonness." sick, 545 P.2d C.J., Dore, Stafford, Dolliver,
Williams, Rosellini, *10 JJ., Tern., J. and and Pro concur. Cunningham, Dimmick, portion (dissenting) J. dissent Utter, —I was opinion which concludes act majority immune amendment from referendum under the 7th exceptions emergency inasmuch as it contained an clause con- correctly it from referendum. The exempting majority and separate cludes contains two amendment that one exceptions right distinct to the of referendum and exempts necessary support these laws for the of those too sweeps government. majority opinion state however, broadly, in that a measure automati- assuming rev- exception generates if it cally within the terms of that involving cases statutes enue the State. those exempted from referendum this court has divided allegedly evenly disallowing in the referendum. allowing about Washington: See in Trautman, Initiative Referendum A This is a Survey, Wash. L. Rev. 74 n.73 "a most delicate balance recognition result of court's powers legislature emergent between State ex rel. Humiston of referendum." people's right Meyers,
Petitioner correctly argues here that the assistance pro- by vided proposed lottery is not immediate enough character justify the suspension of the people's right of referendum. Similarly, the lottery solely is not sup- for the port of state government, unlike "support" measures this court has previously considered. See cases cited Traut- man, at 74 n.73. Where major purpose of the bill is other support, than the support clause does apply. The case of State Hutchinson, ex rel. Burt v. 173 Wash. 21 P.2d is strikingly analogous. That case involved a bill legalizing horse racing and providing for fees to be collected Hutchinson, the State. See at 73. The court rejected the State's assertion that this bill was support state govern- ment, concluding: seems clear to us that the creation of a fund for [I]t "old pensions"
age is a mere act; incident Racing Horse purpose that the of that act is to legalize horse racing and permit wagering by pari-mutuel machines. This is nei- measure, ther a police act, nor an appropriation nor an act in support existing of an state institution.
Hutchinson, at 75-76.
If the State were to receive immediate benefit from the lottery, or if it was solely for the support of state govern- ment, the argument might be different. Such is not case, however, and in maintaining balance between the emergent powers of the Legislature and people's right referendum, I would in this case hold in favor of the people's right of referendum.