Washington State Labor Council v. Reed

Alexander, C.J.

—An order was previously entered in this matter dissolving the temporary injunction we had earlier entered against Secretary of State Sam Reed. The injunction prevented him from certifying the results of the election on Referendum Measure 53. In that order we indicated that “[a]n opinion explaining the court’s decision will be issued in due course.” Wash. State Labor Council v. Reed, No. 73235-2, at 2 (Wash. Jan. 10, 2003) (order). This is that opinion.

We were asked by the Washington State Labor Council, et al. (WSLC) to issue a writ of mandamus or, in the alternative, a writ of prohibition, restraining the secretary of state from canvassing and certifying to the governor the vote count on Referendum Measure 53 (Referendum 53) from the November 5, 2002, general election. In its petition for the writ, WSLC asserted that Referendum 53 is outside the constitutional scope of referendum under article II, section 1(b) of the Washington State Constitution. We have determined that we will exercise our discretionary jurisdiction under article IV, section 4 of the constitution and consider this petition. After having done so, we conclude that because the legislature indicated that only section 2 of the underlying legislation, Engrossed House Bill 2901, is “necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions,” the remainder of the bill is subject to referendum. Agreed Statement of Facts (ASOF) app. 2, at 25. Accordingly, the petition for the writ is denied.

I. Facts

Washington’s 57th Legislature passed Engrossed House Bill 2901 (EHB 2901), now Laws of 2002, chapter 149, which amends Title 50 RCW, the state Employment Secu *52 rity Act. The bill was signed by Governor Gary Locke on March 26, 2002, with a partial veto of section 14 of the bill.1 EHB 2901, inter alia, allocates additional money for training benefits for aerospace workers, sets new percentage amounts for determining class rates, sets new contribution rates for employers, creates an insolvency surcharge, creates an equity surcharge for employers with ineffective charges in their experience rating account for three of the four preceding years, addresses successor employer rates when an employer is not an employer at the time of the employee’s transfer, as well as sets out other requirements in support of unemployment insurance and the Employment Security Department which administers the insurance.

On March 28, 2002, Elliot J. Swaney (Swaney) filed a proposed referendum with the Office of the Secretary of State referring to the people in the next general election all of the amendments made by the legislature to the Employment Security Act in sections 5, 7, 8, 10, 12, 13, 16, and 17 of EHB 2901. The secretary of state designated the filing as Referendum Measure 53.2

The proponents of Referendum 53 collected the required number of signatures and properly followed the statutory requirements for ballot measures. On June 4, 2002, the petitioners formally requested that Secretary of State Reed withhold Referendum 53 from the November 5, 2002, general election ballot. Secretary of State Reed declined to do so based on the historical practice of his office to refrain from determining whether a measure does or does not fall within the constitutional scope of the referendum process (except to decline referendums where the legislature has *53 included an emergency clause). The secretary of state then certified Referendum 53 as supported by a sufficient number of signatures of registered voters to qualify for the November 5, 2002, ballot.

The petitioners, WSLC, then filed an original action in this court on July 8, 2002, seeking a declaration that Referendum 53 is unconstitutional. As relief they sought a writ of prohibition or, in the alternative a writ of mandamus,3 prohibiting the secretary of state from certifying to the county auditors a ballot including Referendum 53. Governor Gary Locke, Elliot J. Swaney, and Vote No on New Taxes (Vote No) were permitted to intervene as petitioners and respondents, respectively. All of the parties agreed upon a statement of facts which was submitted to this court.

Following oral argument to this court on September 10, 2002, we declined to issue a writ of mandamus or prohibition, indicating by order that there was “insufficient time to engage in the deliberations that a case of this magnitude demands,” and because an immediate decision was not required by the dates of implementation of those sections of EHB 2901 included in Referendum 53. Wash. State Labor Council v. Reed, No. 72615-9, 2002 Wash. LEXIS 608, slip op. at 2 (Wash. Sept. 23, 2002) (order). The general election proceeded on November 5, 2002.

After the election, petitioners4 filed a second original action with this court on November 8, 2002, again seeking a writ of mandamus or a writ of prohibition prohibiting Secretary of State Reed from canvassing and certifying to the governor the votes on Referendum 53. The governor and Swaney and Vote No were again permitted to intervene. On the petitioners’ motion, we enjoined the secretary of state from canvassing and certifying the results of the election on Referendum 53 until further order of the court. With leave *54 of the court, Swaney and Vote No then filed a cross-petition seeking a writ of mandamus compelling the secretary of state and the governor to comply with their election duties to canvass and certify the votes, and to declare the results, under RCW 29.62.130.

II. Writ of Mandamus

We must first address the issue whether an original action before this court seeking a writ of mandamus is the appropriate procedure and remedy in this matter. This court has nonexclusive and discretionary original jurisdiction to issue a writ of mandamus against a state officer pursuant to article IV, section 4 of the constitution. Const. art. IV, § 4; State ex rel. LaFollette v. Hinkle, 131 Wash. 86, 89-90, 229 P. 317 (1924).

“[T]he established rule [regarding mandamus proceedings] seems to be that as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large,. . . the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction.”

State ex rel. O'Connell v. Meyers, 51 Wn.2d 454, 459-60, 319 P.2d 828 (1957) (quoting State ex rel. Malmo v. Case, 25 Wn.2d 118, 123, 169 P.2d 623 (1946)). In our view, there is sufficient public interest in whether a referendum before the voters at the general election was, in fact, within the scope of the referendum power set forth in article II, section 1(b) of the constitution. Therefore, the question in this case is of such a character that we will exercise our original jurisdiction.

Although we are generally reluctant to interfere in the electoral process or to give advisory opinions, we have on previous occasions considered whether a ballot measure is authorized within the scope of the power of direct *55 democracy reserved in article II, section 1(b). See, e.g., Andrews v. Munro, 102 Wn.2d 761, 689 P.2d 399 (1984); State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 157 P.2d 721 (1945); State ex rel. Robinson v. Reeves, 17 Wn.2d 210, 135 P.2d 75 (1943), overruled on the merits by State ex rel. Hoppe v. Meyers, 58 Wn.2d 320, 329, 363 P.2d 121 (1961); see also Philadelphia II v. Gregoire, 128 Wn.2d 707, 716-17, 911 P.2d 389 (1996) (a court may review the substance of a proposed initiative to determine whether it exceeds the scope of power set forth in Const, art. II, § 1). While it is preferred that a party seek an injunction at the superior court level instead of filing an original action in the Supreme Court, in rare circumstances we will consider judicial economy and reach the merits of whether an initiative or a referendum was within the constitutional powers of article II, section 1(b). Philadelphia II, 128 Wn.2d at 716; see also State ex rel. O’Connell v. Kramer, 73 Wn.2d 85, 86, 436 P.2d 786 (1968) (parties stipulated to and agreed upon a statement of facts, thus obviating referral of the cause to superior court). As we determined in Philadelphia II, judicial economy compels us to consider the merits of this case. The parties have fully briefed and argued the substantive issues twice in five months, and if we were to decline to exercise jurisdiction it is likely the petitioners would renew their petition in a superior court. The matter could arrive at this court a third time.

Mandamus is an appropriate remedy where a petitioner seeks to prohibit a mandatory duty. State ex rel. Heavey v. Murphy, 138 Wn.2d 800, 804-05, 982 P.2d 611 (1999); City of Tacoma v. O’Brien, 85 Wn.2d 266, 268, 534 P.2d 114 (1975) (citing State ex rel. O’Connell v. Yelle, 51 Wn.2d 620, 320 P.2d 1086 (1958)). The secretary of state is charged with the statutory duty to canvass the votes and certify the results to the governor within 30 days after any election. RCW 29.62.130. This duty is mandatory. RCW 29.62.130 (using the word “shall”); see also Heavey, 138 Wn.2d at 805. Therefore, a writ of mandamus is an appropriate remedy if we determine that the secretary of state *56 should be prohibited from completing the duties set forth in RCW 29.62.130. The secretary of state should be prohibited from these duties only if Referendum 53 is not within the constitutional scope of the referendum power.

III. Is EHB 2901 Within the Scope of the Referendum Power?

Article II, section 1 of the 1889 state constitution vests legislative authority in the legislature. In 1912, the Seventh Amendment to the constitution was adopted by the people. It reserved powers of direct democracy to the people by granting them the rights of initiative and referendum. The first power reserved to the people is the initiative which allows the people to create and propose laws themselves. Const, art. II, § 1(a). The second power is the referendum which gives the people the power to review laws enacted by the legislature. Const, art. II, § 1(b). A referendum may be of either an entire act or sections of an act. Const, art. II, § 1(b); Brower v. State, 137 Wn.2d 44, 56-57, 969 P.2d 42 (1998). The purpose of the referendum is to facilitate the governance of the people by themselves. The idea that power lies first and primarily with the people is expressed in the first section of the constitution: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed.” Const, art. I, § 1. From this basic concept this court has perceived that the purpose of the Seventh Amendment is to provide “a broad base for the exercise of power by the people,” Yelle v. Kramer, 83 Wn.2d 464, 476, 520 P.2d 927 (1974), and declared that the right of referendum is “the first of all the sovereign rights of the citizen—the right to speak ultimately and finally in matters of political concern.” State ex rel. Mullen v. Howell, 107 Wash. 167, 171, 181P. 920 (1919). This right is not, however, unlimited.

Article II, section 1(b) places two separate and distinct limitations on the people’s power of referendum. Farris v. Munro, 99 Wn.2d 326, 336, 662 P.2d 821 (1983) *57 (citing State ex rel. Helm v. Kramer, 82 Wn.2d 307, 312, 510 P.2d 1110 (1973)). The referendum may not be ordered on “such laws as may be necessary for the immediate preservation of the public peace, health or safety, [or5] support of the state government and its existing public institutions.” Const, art. II, § 1(b). An act which falls into either of these exceptions is not subject to referendum. See State ex rel. McLeod v. Reeves, 22 Wn.2d 672, 674, 157 P.2d 718 (1945).

Petitioners contend that EHB 2901 is outside the scope of the referendum power. Whether the petitioners are correct depends on whether the act “may be necessary for the . . . support of the state government and its existing public institutions.” Const, art. II, § 1(b). In determining whether an act is subject to referendum this court considers the act as a whole, not just those sections which have been referred. Andrews v. Munro, 102 Wn.2d 761, 765, 689 P.2d 399 (1984).

As is the case with EHB 2901, the legislature often attaches an “emergency clause” to legislation that mimics the wording of the exceptions in article II, section 1(b), causing that legislation to be exempt from referendum.6 See State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 380 P.2d 735 (1963). Section 18(1) of EHB 2901 states, as follows: “Section 2 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public insti *58 tutions, and takes effect immediately.” ASOF app. 2, at 25. Intervenor-respondents assert that because EHB 2901 contains an emergency clause directed at section 2 it is apparent that the legislature intended that section 2 and only section 2 is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions. Intervenorrespondents argue, therefore, that only section 2 is exempt from the right of referendum. Petitioners respond that it is plain that the entirety of EHB 2901 is a measure in support of an existing public institution regardless of the sweep of the emergency clause.

A “ legislative declaration of emergency and necessity ... is conclusive and must be given effect, unless the declaration on its face is obviously false.’ ” CLEAN v. State, 130 Wn.2d 782, 807, 928 P.2d 1054 (1996) (quoting Humiston, 61 Wn.2d at 778). This court has been steadfast in the application of this rule since the adoption of the referendum power. See State ex rel. Brislawn v. Meath, 84 Wash. 302, 307-08, 147 P. 11 (1915). It is a judicial question whether a measure is, in fact, in support of an existing government institution when an emergency clause is challenged or when the legislature has not plainly indicated its intentions. Andrews, 102 Wn.2d 761; Farris, 99 Wn.2d 326; Brislawn, 84 Wn. at 313, 318. However, the petitioners do not challenge the emergency clause in section 18 and we will not inquire into its validity. Thus, where the legislature declares that a part of an act is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions and that declaration is not challenged, we will defer to the legislature’s intent.

Because the emergency clause declares that only section 2 is necessary, intervenor-respondents claim the statutory construction rule expressio unius est exclusio alterius (express mention of one implies exclusion of all others) applies to EHB 2901 and therefore the remainder of the act is subject to referendum. See Kreidler v. Eikenberry, *59 111 Wn.2d 828, 835, 766 P.2d 438 (1989). However, this maxim “cannot be rigidly applied to . . . defeat the intent of the legislature.” State v. Williams, 94 Wn.2d 531, 538, 617 P.2d 1012 (1980). In Amalgamated Transit Union Legislative Council v. State, the court indicated that the rule of expressio unius est exclusio alterius did not necessarily apply without considering other factors which may persuade the court that legislative intent was the opposite of what the statutory construction rule would require. Amalgamated Transit Union Legislative Council v. State, 145 Wn.2d 544, 552-57, 40 P.3d 656 (2002) (where certain statutes are explicitly repealed by a new law, a statute that was not explicitly repealed is not repealed by implication where factors, such as legislative history and an attorney general opinion, were not sufficient to show legislative intent was to repeal the statute).

In the case of EHB 2901, it is not clear what the legislature intended beyond its declaration that only section 2 is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions. A thorough reading of the legislative amendments to the unemployment compensation act in EHB 2901 does not yield an indication one way or the other about whether the legislature considered the remaining amendments emergent or believed the legislation was necessary for support of government institutions. Furthermore, the legislative history is almost silent on this point. However, the Senate Bill Report to EHB 2901 does state that the testimony for the bill claimed the “bill is very important” and intended “to address an immediate crisis in the state’s unemployment insurance .... If nothing happens in light of the state’s recession and higher unemployment rates, businesses will face a new round of tax increases.” S. Comm, on Labor, Commerce and Fin. Insts., 57th Leg., EHB Rep. 2901 (Wash. 2002). The House Bill Report indicates that EHB 2901 makes only “beneficial changes” and will prevent “big jumps in tax schedules.” H. Comm, on Commerce and Labor, 57th *60 Leg., EHB Rep. 2901 (Wash. 2002). These statements do not reveal an intent on the part of the legislature that the bill is necessary for the support of the state government or its existinginstitutions. Rather they seem to indicate the bill is necessary for assisting businesses.

Due to the lack of facts to the contrary, this court concludes that legislative intent is not defeated by application of the rule of construction, expressio unius est exclusio alterius, to EHB 2901. The legislature determined that only section 2 of EHB 2901 is necessary for the immediate preservation of the public peace, health or safety, or support of the state government and its existing public institutions, and thereby determined that the remainder of the act is not. Where the legislature declares that a measure is immediately necessary or is in support of a government institution and that declaration is unchallenged we will defer to the legislature’s determination. We therefore conclude that Referendum 53 is within the constitutional scope of the referendum power in article II, section 1(b).

By previous order we denied the petition for a writ of mandamus or prohibition. In light of that ruling, we dissolved the temporary injunction. Because we did so, we need not reach the cross-petitioners’ request for a writ of mandamus to issue against Secretary of State Reed and Governor Locke requiring that they canvass, certify, and declare the results of the election pursuant to RCW 29.62.130.

IV. Attorney Fees

Intervenor-respondents seek reasonable attorney fees on the equitable grounds that recovery is possible where a preliminary injunction is issued and then dissolved following trial. Granting attorney fees where a challenge to an injunction is successful is based on the premise that a temporary injunction prohibits a party from engaging in a particular activity. That party’s only option, other than submitting to the order, is to take legal action. Attorney fees *61 are awarded for the damages suffered from the injunction. Cecil v. Dominy, 69 Wn.2d 289, 293, 418 P.2d 233 (1966). Here, the temporary injunction was issued against the secretary of state preventing him from completing the statutory duty of canvassing and certifying the vote. It did not issue against the intervenor-respondents and, therefore, did not affect the rights of the intervenor-respondents. The equitable grounds under which attorney fees are sought do not apply and, thus, as we previously indicated by order, reasonable attorney fees are not available to the intervenor-respondents.

Johnson, Madsen, Ireland, Bridge, and Owens, JJ., and Smith, J. Pro Tem., concur.

Section 14 called for a 16-member task force to study the unemployment insurance system and report on those issues in the system addressed by the bill prior to the time that the act would be fully effective. As a result of the veto the sections of EHB 2901 were renumbered from 1 through 19 to 1 through 18.

The referendum was first called Referendum Measure 51. Swaney withdrew the proposal and refiled an identical proposal on April 8, 2002, which was called Referendum Measure 53. This action was taken to avoid confusion with the similarly titled Referendum Bill 51, regarding transportation funding, referred to the people by the 57th Legislature.

Initially, the petitioners sought only a writ of prohibition but later amended their petition to request the alternative remedy of a writ of mandamus.

All the petitioners in the first action joined in the second action except three parties.

The court has repeatedly stated that the omission of “or” in the exceptions stated in article II, section 1(b) was an inadvertent mistake and the phrase should be interpreted to include “or” and therefore create two distinct exceptions to the Seventh Amendment. Farris, 99 Wn.2d at 335 (citing State ex rel. Hoppe v. Meyers, 58 Wn.2d 320, 326, 363 P.2d 121 (1961)).

However, an emergency clause is not required for an act to be exempt from referendum. See State ex rel. Helm v. Kramer, 82 Wn.2d 307, 313, 510 P.2d 1110 (1973) (citing State ex rel. Pennock v. Reeves, 27 Wn.2d 739, 743, 179 P.2d 961 (1947)). Petitioners argue that the legislature is aware of the legal irrelevance omission of an emergency clause in determining whether a measure is exempt from referendum. Thus, petitioners claim, the emergency clause directed at section 2 of EHB 2901 should be treated as “immaterial surplusage.” However, omission of an emergency declaration is not the situation before us; the legislature included an emergency clause in EHB 2901. As discussed below, legislative intent is commonly determined by examining what the legislature included in an act and excluding everything else.